Burndy, LLC

National Labor Relations Board - Administrative Judge Opinions

Jul 31, 2013

34-CA-065746 (N.L.R.B. Jul. 31, 2013)

JD(NY)–35–13
Bethel, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
BURNDY, LLC
and Case Nos. 34-CA-65746
34-CA-79296
GLASS MOLDERS, POTTERY, PLASTICS &
ALLIED WORKERS LOCAL 39B
BURNDY, LLC,
and Case No. 34-CA-78077
IUE-CWA, LOCAL 485
Thomas Quigley, Esq.,
for the Acting General Counsel
Michael Soltis, Esq. and Joan C. Luu, Esq.
(Jackson Lewis, LLP), of Stamford, Connecticut,
for the Respondent
DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. Based upon a charge in Case 34-CA-
065746, filed on September 29, 2011, and amended on November 3, 2011, and December 16,
2011, by Glass Molders, Pottery, Plastics & Allied Workers Local 39B (the “GMP”), upon a
charge in Case 34-CA-079296, filed on April 20, 2012, and amended on June 6, 2012, and July
30, 2012, by the GMP, and upon a charge in Case 34-CA-078077, filed on April 3, 2012, and
amended on May 30, 2012, June 8, 2012, and July 30, 2012, by IUE-CWA, Local 485 (the
“IUE”), an order consolidating cases, consolidated amended complaint ,and notice of hearing
issued on July 31, 2012. The consolidated amended complaint (the “complaint”) alleges that
Burndy, LLC (“Burndy” or “Respondent”), violated Sections 8(a)(1) and (3) of the Act by
harassing union stewards, disparately enforcing a rule prohibiting loafing, imposing more
onerous working conditions, and issuing written counselings, verbal and written warnings, and a
suspension to various employees in retaliation for their activities on behalf of the GMP and IUE.
The complaint further alleges that Burndy violated Sections 8(a)(1) and (5) of the Act by
prohibiting the IUE from using a photocopier for copying grievances, and refusing to pay the
cost of printing its collective-bargaining agreement with the IUE. Finally, the complaint alleges
that Respondent maintained unlawful work rules regarding disclosure of information, dress
code, public communications, and soliciting, and alleges that a number of Respondent’s
managers made statements to employees or otherwise engaged in conduct violating Section
8(a)(1) of the Act. Respondent filed an answer denying the complaint’s material allegations.
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This case was tried before me on November 6, 7, and 8, 2012, and on January 22, 23,
and 24, 2013, in Hartford, Connecticut. During the hearing, counsel for the Acting General
Counsel (the “General Counsel”) amended the complaint to add allegations regarding
statements to employees which violated Section 8(a)(1). General Counsel also withdrew
allegations that Respondent violated Sections 8(a)(1) and (5) by failing to provide the GMP with
requested information, or by an unreasonably delay in doing so, and by imposing financial
charges on the GMP for providing the information requested.
Findings of Fact
I. JURISDICTION
Respondent operates a sand foundry in Bethel, Connecticut, where it manufactures cast
electrical connectors comprised of various metals, utilizing the sand molding process, for use in
the generation and transmission of electricity. Respondent admits and I find that at all material
times it has been an employer engaged in commerce within the meaning of Sections 2(2), (6),
and (7) of the Act. Respondent admits and I find that at all material times the GMP and the IUE
have been labor organizations within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Operations
Respondent’s Bethel facility is approximately 75,000 square feet, with roughly equal
portions of that space appropriated to the foundry, various machining areas, and the warehouse
and office. In order to manufacture its electrical connectors, Respondent’s employees make
patterns which are used to prepare molds. Molten metal is then poured into the molds to make
the cast connectors. Respondent employs 75 to 80 employees at the Bethel facility.
Approximately 28 of those employees work in Respondent’s foundry, including the pattern shop,
the foundry finishing area, the core room, and areas containing machines such as the
Wheelabrator, and are represented by the GMP. About 35 employees work in the warehouse,
assembly, machining, tooling, and maintenance areas, and are represented by the IUE.
The standard work hours at Respondent’s facility are 7 a.m. to 3:30 p.m. Overtime work
on weekdays is scheduled prior to 7 a.m. The GMP-represented employees have a 32 minute
unpaid lunch break, a 12 minute morning break, and a 10 minute afternoon break. The IUE-
represented employees receive a 30 minute unpaid lunch break and two 10 minute breaks, one
in the morning and one in the afternoon. The break and lunch times for the two bargaining units
are staggered, such that the GMP morning break takes place from 8:48 to 9 a.m., and the IUE
morning break takes place from 9 to 9:10 a.m. The IUE lunch break takes place from 12 to
12:30 p.m., while the GMP lunch break is from 12:30 to 1:02 p.m. The IUE afternoon break is
from 2 to 2:10 p.m., and the GMP afternoon break is from 2:10 to 2:20 p.m. Break and lunch
periods are signaled by bells or buzzers which sound when they begin and end.
Ed Marczyszak became the manager of the Bethel plant in March 2008, and has overall
responsibility for all aspects of the plant’s operations. Marczyszak reports to Vice President of
Operations Jerry Heckman, whose office is located in Manchester, New Hampshire. Joseph
Arnson has been Respondent’s Foundry Supervisor for 8 years. He supervises the GMP-
represented employees in the foundry department, and reports to Production Manager Keith
Swanhall (Swanhall reports to Marczyszak). Brian Butler is the engineering supervisor, and is
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responsible for the three pattern shop employees in the GMP—Michael Cavaluzzi, Michael
Vaast, and Dan Domeracki—as well as several engineers. Butler reports to Arnson. Mary
Rovello is the human resources manager responsible for the Bethel facility, and reports to
William Lochman, Burndy’s director of human resources. Lochman’s office is in New
Hampshire, but Lochman is in close contact with Rovello, and serves as Respondent’s chief
spokesperson during negotiations with the unions. Lochman reports to Andrea Frohning, the
vice president of human resources for Hubbell, which purchased Respondent in 2009.
Respondent admitted in its answer and I find that at all material times Marczyszak, Arnson,
Butler, Rovello, and Lochman were supervisors within the meaning of Section 2(11) of the Act,
and agents acting on Respondent’s behalf. Marczyszak, Arnson, Butler, Rovello, and Lochman
testified at the hearing.
The complaint’s allegations pertain primarily to employees in Respondent’s pattern shop,
a lead person, and the material handler, who are represented by the GMP, and to a
maintenance technician or mechanic, who is represented by the IUE. Respondent’s pattern
shop is located near its management offices at the front of the facility, near the cafeteria and a
locker room which contains a bathroom. The employees in the pattern shop, supervised by
Butler, make patterns for the sand molds into which molten metal will ultimately be poured to
make the finished part ordered by the customer. The pattern makers also repair broken
patterns. There are literally thousands of patterns stored throughout the facility. Each of the
three pattern makers—Michael Vaast, Daniel Domeracki, and Michael Cavaluzzi—has their own
work bench with a stool in the pattern shop, where they make and repair patterns for use in the
production process. Unlike other areas of the facility, the noise level in the pattern shop is low
and there is no need to wear ear protection.
Thomas Norton is the pattern coordinator. Norton has overall responsibility for the
condition of the patterns, and if a pattern is broken he brings it to the pattern shop and explains
to the pattern makers what needs to be done. Norton fills out a card, in effect a bill for the
pattern makers’ performing the necessary repairs, which accompanies the pattern. When the
pattern has been repaired, Norton retrieves it from the pattern shop, and provides it to the
machinists who will be making a mold based on the pattern. Norton also prepares a schedule
regarding the metals which will need to be melted in order to begin preparing the finished part.
Norton’s work requires that he move throughout the entire facility. Norton is supervised by
Arnson.
Robert Hing has been Respondent’s material handler for the past 6 to 8 years, and is
responsible for moving various materials around the facility, sometimes using a forklift. Based
upon the schedule prepared by Norton, Hing moves metals and other materials to the areas
necessary in order to complete a particular stage in the production process. In addition, Hing
removes a bucket of scrap from the pattern area approximately once a month, and performs
other tasks as requested, such as moving boxes. Hing’s work requires that he move throughout
the entire facility. Hing is also supervised by Arnson.
Robert Sears has been employed by Respondent as a maintenance technician or
mechanic for 24 years. He works from 4 a.m. to 3:30 p.m. from Monday to Friday, and also
works on Saturdays. Sears works out of a maintenance department, where the mechanics’
tools and equipment are located, but performs work all over the facility, depending upon the
specific machines that need repairs. Sears estimated that he spends only 2 hours out of each
11 hour day in the maintenance department, because most of his work is performed at
machines elsewhere in the facility. He is supervised by Andy Foote. It was generally
undisputed that Sears is a talented mechanic.
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B. Collective-Bargaining Agreements and Union Leadership
Respondent has had collective-bargaining relationships with both the GMP and the IUE
for a number of years, and its last negotiations with both unions took place in 2011.
Respondent’s most recent collective-bargaining agreement with the GMP is effective by its
terms from February 28, 2011, to February 27, 2015, and its most recent contract with the IUE
is effective by its terms from January 23, 2011, to January 24, 2014. Both collective-bargaining
agreements have grievance and arbitration provisions, and management-rights clauses. The
IUE contract also has a complete agreement provision, or a “zipper clause.” Finally, the IUE
contract also has a provision at Article 27(A) stating that “No member of the Union shall carry on
union activities during working hours on the premises of the Employer.”
Both unions have officials employed by Respondent, and are also sometimes
represented by business agents employed by the GMP and IUE. Hector Sanchez was the
GMP’s international representative, employed by the Union, until March 2012, when Matt
McCardy assumed that position. During the period material to the complaint’s allegations,
Thomas Norton, Respondent’s pattern coordinator, was president of the GMP. Norton began
his employment with Respondent in December 2010, and became President of the GMP in May
2011. Prior to Norton’s becoming president, Jose Valentin had been president of the GMP for a
number of years. Robert Hing has been the GMP’s chief steward for 2 years and was a steward
for 3 years prior to that. Hing files grievances and attends step 2 and 3 grievance meetings on
behalf of the Union. Michael Vaast, a pattern maker, became Recording Secretary for the GMP
in May 2011; while Vaast takes notes during meetings and prepares grievance forms, he is not
a member of the GMP’s negotiating team and does not participate in grievance meetings.
Daniel Domeracki, a pattern maker, became the GMP’s treasurer in May 2011, and also does
not participate in negotiations or grievance meetings. Radames Velez, a lead person, had
previously been chief steward for the GMP. Michael Cavaluzzi was a steward for the GMP until
his resignation in September 2012. Norton, Hing, Vaast, Domeracki, and Velez testified for
General Counsel at the hearing.
Robert Sears has been a steward for the IUE for approximately 20 years. Herman
Barnes is an IUE committee person, whom Respondent also recognizes as a steward. Until
December 2011, Henry Agramonte was the IUE’s chief steward. Humberto Leone is a business
agent employed by the IUE. Sears testified for the General Counsel at the hearing.
C. Respondent’s Work Rules and Practices Regarding Talking During Worktime
Norton, Vaast, Domeracki, Velez, and Sears all testified that employees discuss
nonwork topics such as sports, politics, and the weather amongst themselves during worktime.
The employees also testified that managers sometimes joined these conversations, and that it
was common for both employees and managers to exchange pleasantries and chat for a few
minutes after entering a particular area of the facility with the employees working there. For
example, Norton testified that he discusses hunting and fishing with Arnson four to five times
per week. Norton testified that he had also seen employees with adjoining work stations
arguing during worktime. Velez testified that employees stop to talk to one another and to
supervisors regarding sports and weekend activities during worktime, pausing in their work
while doing so. Vaast also testified that it was not unusual for Butler, Arnson, and even
Marczyszak to spend a few minutes discussing sports or the weather when they visited the
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pattern shop, and that he did not continue to work during these conversations.1 Vaast testified
that Cavaluzzi and Domeracki also spoke about nonwork topics on worktime in a similar
manner. Arnson and Butler generally corroborated the pattern shop employees’ testimony that
they participated in brief discussions of nonwork-related topics on worktime. Butler testified that
he enjoyed a good relationship with the pattern shop employees, whom he considered to be
hard workers, as a result.2
Marczyszak testified that employees are generally permitted to talk to one another
during worktime regarding nonwork-related matters, so long as they are working. As
Marczyszak put it, employees “can talk all day as long as they can perform their task, and their
mission adequately and they’re not stopping.” However, Marczyszak also testified that he
typically exchanged brief pleasantries with employees on the shop floor, and indicated that brief
conversations involving nonwork-related matters were generally acceptable, even if the
employees did not physically work throughout (Tr. 797–798).
Since at least 2008, Respondent has maintained a list of general rule violations which
include the following violation as rule 9: “Loafing or other abuse of time during assigned work
hours.” However, Norton, Vaast, Domeracki, and Velez all testified that they had never heard of
any such rule prohibiting loafing. Marczyszak defined the difference between permissibly
exchanging pleasantries and loafing as “taking more than just a few minutes” to talk without
returning to work.3 Rovello testified that “probably sometime in 2010” she began to cite General
Rule 9 in disciplinary notices, and refer to various types of conduct, such as smoking, as
“loafing.” Rovello testified that she began this practice because when Cavaluzzi was issued
numerous disciplines for smoking, Hing, as GMP chief steward, took the position that smoking
inside the facility should be treated as a different offense for progressive disciplinary purposes
than smoking outside.4 Under the progressive discipline applicable to employees in both
bargaining units, the first offense results in counseling, the second in a verbal warning, the third
in a written warning, the fourth in a 3-day suspension, and the fifth in discharge. Rovello
contended that she began citing General Rule 9 so that all incidents involving an employee’s
failure to work during worktime would be considered the same offense for progressive
disciplinary purposes. Lochman testified that he directed Rovello to cite General Rule 9 for all
offenses involving not working during worktime “once things got a little bit more confrontational,
where we saw the increase in grievances” on the part of the Unions.
D. Changes in Plant Management and GMP Leadership, Events of 2011
The evidence establishes that during the past 5 years, changes in Respondent’s
management personnel and in union leadership have resulted in a substantially altered

1 Velez testified that a conversation which lasted “a minute or two” was allowed during
worktime, and Vaast testified that in his experience conversations of 5 minutes were acceptable.
2 Sears also testified that in his experience the employees had always been permitted to
speak to one another about non-work-related matters for a few minutes at work, and had never
been disciplined as a result.
3 Respondent introduced into evidence what it described as discipline issued to bargaining
unit employees for loafing or otherwise violating General Rule 9 during the period January 1,
2008, to the present.
4 Discipline for issues other than attendance expires a year after the last discipline for the
particular offense was issued; discipline for attendance issues expires at the end of the calendar
year in which the discipline was issued.
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collective-bargaining relationship. Marczyszak, who began as Respondent’s plant manager in
March 2008, proved to be more aggressive and rigorous in his approach to the employees than
the previous plant manager. Marczyszak testified that when he began as plant manager he was
unhappy with what he considered to be a lack of work ethic among the employees in the IUE
bargaining unit, particularly Sears, the other maintenance employees, and an IUE machinist.
Marczyszak testified that during his first year or so as plant manager, he discovered Sears
engaged in nonwork activities during worktime on several occasions, such as smoking (both
inside and outside the facility), fixing the tire on another employee’s car, and having a pastry
with the other maintenance employees. Marczyszak testified that he also removed a
refrigerator and microwave from the maintenance area, as well as a printer being used for IUE
business. During Marczyszak’s first year as plant manager, the IUE filed unfair labor practice
charges alleging that steward Ray Dalton was discharged, and Sears was disciplined, in
retaliation for their union activities. The Regional Director, Region 34, apparently issued a
complaint against Respondent containing such allegations, which was settled by the parties. In
addition, in November 2008, Dalton posted on the IUE bulletin board a notice proclaiming the
10th of that month “Red Shirt Day,” and asking employees to wear a red shirt if they were
dissatisfied with “the way that this Company is being run and the direction that it is headed.”
Marczyszak testified that a number of employees belonging to both unions wore red shirts at the
designated time. Lochman testified that in 2010 the bargaining unit employees had forwarded a
petition complaining about Marczyszak to Andrea Frohning at Respondent’s headquarters in
New Hampshire. Finally, at some point after Marczyszak became plant manager he discovered
that “Fuck you Ed” was written on each of the eight hoppers in the sand tunnel below the
foundry.
By all accounts, when Norton was elected president of the GMP in June 2011, the
relationship between the parties became even more contentious.5 Marczyszak testified that
Norton was a more aggressive union representative than his predecessor Valentin had been,
and that the parties had been able to resolve issues more amicably prior to Norton’s election.
Marczyszak also testified that once Norton became president, GMP officers appeared to spend
more time in grievance preparation, sometimes during worktime. Marczyszak testified that
during a conversation with Arnson regarding this issue, he told Arnson, “whenever you see
those union guys getting together and they’re not working you write them up,” and “tell them that
I said so.” Arnson confirmed that sometime between Norton’s election and May 2012, he had
been specifically directed by Marczyszak to look out for employees gathered together and
engaged in conversation.
During the summer of 2011, cutoff operator Francisco Taveras was disciplined for poor
performance, in particular for failing to make the applicable incentive rate for his position. As a
result, on July 6, 2011, Norton submitted an information request asking that Respondent provide
copies of all cut off operator time sheets in order to investigate a grievance based on the
discipline imposed.6 Norton testified that on July 5, 2011, the day before he submitted the

5 On February 25, 2011, prior to Norton’s becoming president, Respondent and the GMP
entered into an agreement for a successor collective-bargaining agreement, which contained
more specific employee requirements for calling out sick and provided for penalties if an
employee committed to overtime and then failed to work the scheduled hours. Marczyszak
testified that these provisions were intended to ameliorate the problems involving absences and
general “lack of work ethic.”
6 The parties continued to address this information request for months afterwards. It was
ultimately the subject of allegations withdrawn by the General Counsel at the hearing. Although
Continued
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information request, in the office he shared with Foundry Supervisor Arnson, Arnson told him
that if he was seen talking to Hing or any of the other stewards, he would be written up because
it would be assumed that he was discussing union business on worktime. According to Norton,
Arnson told him that as GMP president he had “a big target on [his] back,” and that Marczyszak
would “come gunning for [him].” Arnson corroborated Norton’s testimony, stating that he
informed Norton that if he was “stirring things up” or intended to “start things,” “there’s going to
be a target on your back.”
Subsequently on July 18, 2011, Taveras was suspended for failing to satisfy the
incentive rates for the cut off operator position, and on July 25, 2011, Norton filed a grievance
alleging that the suspension violated the collective-bargaining agreement. Later that day, when
Norton returned from lunch to his office, Arnson told him that he was late.7 Arnson said that
Marczyszak had directed him to tell Norton that Norton was late returning from lunch, but that
Marczyszak was giving him a “bye” or a pass on the matter. Norton testified that about a half
hour later, during his afternoon break time, he went to Marczyszak’s office to give him a copy of
an unfair labor practice charge. After he did so, he disputed Marczyszak’s claim, conveyed to
him by Arnson, that he had returned from lunch late, saying that he was back before the bell
rang. Norton then compared Marczyszak’s watch to his own phone, stating that Marczyszak’s
watch was the slower of the two.8 Marczyszak then told Norton that if he was seen talking to
Hing or any of the other union officers in the shop, it would be assumed that they were
discussing union business, and they would be written up. Norton stated that when he was on
company time he was there to work, and left. Marczyszak basically corroborated Norton’s
account of this conversation, but denied telling Norton that he would assume that any
discussions between union officers involved union business, and a write-up would ensue.
Norton and Hing both testified that during September and October 2011, Arnson
continued to tell them that if they were seen talking to other union officers or coworkers on
worktime they would be written up based on the assumption that union business was being
discussed. Norton testified that in September and October 2011, Arnson repeatedly told him
that if he or Hing were discovered talking to any of the other pattern shop employees9 they
would be written up, “assuming that they were talking union business.” Hing and Norton stated
that on October 13, 2011, Arnson approached them as they were talking right before the lunch
break, and told them, “If you guys are talking union business, I’m going to write you up.”10 Hing
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Norton testified that he did not believe that Valentin had ever submitted an information request
to Respondent, he testified that GMP business agent Hector Sanchez had done so.
7 Norton testified that he observed Marczyszak watching him while he ate lunch outside the
facility. Marczyszak testified that he observed Norton remaining outside to smoke a cigarette
after the buzzer signaling the end of lunch had rung.
8 Marczyszak testified that because the facility’s buzzers, and not individual watches or cell
phones, determine the end of lunch and break times any difference between the time displayed
by his watch and Norton’s cell phone was irrelevant.
9 At the time, all of the pattern shop employees—Domeracki, Cavaluzzi, and Vaast—were
GMP officers.
10 Norton testified that he and Hing needed to discuss a number of work-related issues.
Primarily, Hing needs to review Norton’s paperwork to see how much metal to retrieve to fill the
kettles once melted. Norton testified that because the next day’s production schedule is
susceptible to change, Hing consults with him several times a day regarding this information.
Norton informs Hing how many furnaces he needs to light, and with what specific metals. Hing
must also occasionally retrieve scrap metal and bring materials to the pattern shop. It is
Continued
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testified that Arnson said that he had been told to write the employees up if they were talking
about union business.11 Norton stated that although he could not recall the exact date, Arnson
told him that if he saw Norton talking with Hing or any of the other stewards, they would be
written up on the assumption that they were discussing union business. Hing also testified that
after Norton became president, Arnson began interrupting his conversations with Norton, asking
them what was going on and stating, “I hope you’re not talking about Union business.”
According to Hing, when he responded that he and Norton were discussing work, Arnson said,
“You know what Ed would do if he seen you talking,” or discussing union business.
Arnson testified that sometime during the year after Norton was elected GMP president,
Marczyszak had directed him to give the employees a “heads up” that if they were not working,
management would “assume you’re doing union business.” Arnson testified that he thereafter
informed Norton, Hing, and other employees, “Ed told me if I catch you that you’ll be written up,”
when he saw them talking to one another on the shop floor. Arnson admitted that while he
never wrote Norton up, he “always went up and said” that according to Marczyszak’s
instructions he was to assume that they were involved in union business if they were talking
together on worktime, and to issue discipline. Arnson testified that although he typically saw
Norton or Hing with a union contract or papers approximately three times each year, he never
told them that they were not to conduct union business on worktime until the fall of 2011.
Arnson testified that after an initial 2 week period when he admonished Norton and Hing
repeatedly in this manner, “we had a discussion in the office of—not to say that, not to use
those words anymore.” Instead, Arnson was apparently instructed to ask the employees “What
are you doing?” or “Why are you bothering him while he’s working?”12 However, according to
Norton, Arnson continued to approach him when he was talking to other employees, and ask
him what they were talking about, what they were working on, and what Norton was doing in the
area. In addition, Hing testified that beginning in the fall of 2011, Arnson began directing him to
take another route to the bathroom, and stop going through the pattern shop. Arnson testified
that he did so on several occasions, so that Hing would not be “tempted to stop” and talk to one
of the pattern shop employees, even though Arnson admitted that he did not know whether, in
the event that Hing did converse with one of the pattern shop employees, they were “talking
shop.”
Norton and Hing testified that Butler, the engineering supervisor directly responsible for
the pattern shop, also admonished them and the other pattern shop employees against
speaking to one another in a manner similar to Arnson. Norton testified that in September or
October 2011, Butler told him “almost daily” that if he caught Norton or Hing talking to any of the
pattern shop employees, he would assume that they were discussing union business, and write
them up. Norton testified that he told Butler that he had to speak to the pattern makers every
day in order to do his job. Hing also testified that some time after Norton became President he
was talking to Cavaluzzi when Butler approached them. Butler asked Hing and Cavaluzzi what
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undisputed that Norton must visit the pattern shop and interact with the pattern makers regularly
as part of his pattern coordinator duties.
11 Norton testified that he and Hing were talking about going to lunch at Burger King at the
time, whereas Hing testified that they were discussing work.
12 It is not clear from his testimony whether Arnson was referring to the presentation entitled
“’Work Time is for Work’ Guidelines,” given by Rovello and Marczyszak in May 2012.
Marczyszak did not testify regarding any other attempt to clarify with other managers the
treatment of employee conversations and activities during work-time.
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was going on, and said, “I hope you’re not talking about union business.” Hing testified that in
the fall of 2011 and continuing into 2012, Butler interrupted his conversations with Norton and
the pattern makers in the same manner as Arnson, asking them what was going on.
Butler testified that he was informed at a meeting with Marczyszak and Rovello that he
needed to be on the lookout for employees abusing time. Butler testified that as a result, when
he observed Hing and the pattern makers together, he told them that they were supposed to be
engaged in work-related activities. Butler testified that he used the term “union activity” in the
context of these conversations, but could not recall a specific example. Butler testified that in
2009 he had disciplined Cavaluzzi for doing union business on worktime. Finally, Butler stated
that he had last asked Norton what he was doing in the pattern shop in early January 2013,
even though he admitted that Norton “has typically always given me good reasons to be in the
Pattern Shop.”
E. Events of January 2012
In December 2011, a GMP-represented molder named Evan Cessa broke a pattern
plate that he had been specially trained to work on, so that the pattern had to be remade.
Domeracki reported the issue to Butler, who informed Marczyszak. Marczyszak then called
Cessa into the pattern shop and, in Marczyszak’s words, “chewed him out,” telling him that he
could be fired for damaging equipment, and emphasizing the cost to the company for making
the pattern. Marczyszak raised his voice at Cessa during this interaction, and Domeracki, who
was present in the pattern shop at the time, testified that he had never seen Marczyszak
angrier.
On January 3, 2012, Norton, on behalf of the GMP, and Henry Agramonte, then the
IUE’s chief steward, sent a letter to Rodd Ruland, Andrea Frohning, Lochman, Rovello, and
Swanhall protesting what they termed a “hostile work environment.” The letter stated that the
employees at the Bethel facility believed that they were “being harassed, intimidated and
threatened” by Marczyszak “on a daily basis, for no good reason,” and asked upper
management to intervene. The letter further asked that Cessa and all other employees receive
an apology for Marczyszak’s “harassment and intimidation” during the previous month, and
suggested that Marczyszak “be sent for anger management and a psychiatrist for the way he
treats his employees and supervisors.” Finally, the letter stated that the unions were
“documenting all retaliatory actions” on Marczyszak’s part. The letter contained an attachment
signed by approximately 49 employees.13
Finally, on January 31, 2012, the Regional Director, Region 34, issued a complaint and
notice of hearing against Respondent in Case 34–CA–065746. This initial complaint alleged
that Respondent had unlawfully refused to provide information to the GMP or unreasonably
delayed in responding to its information requests, unilaterally imposed financial charges for
satisfying information requests, threatened employees with discipline and unspecified reprisals,

13 In addition, on January 4, 2012, the GMP filed a grievance regarding the manner in which
Marczyszak confronted Cessa regarding the broken pattern plate. Marczyszak testified that
during a step 3 meeting on February 29, 2012, the parties agreed to meet with everyone
involved and discuss the incident in order to explain their positions and, as Marczyszak testified,
“make amends.” Although the conciliatory meeting never took place, Cessa was not disciplined
regarding this incident. In addition, Respondent agreed that in the future a GMP representative
would be present when a bargaining unit member was reprimanded by management.
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conducted surveillance and created the impression of surveillance, prohibited employees from
discussing the union and their working conditions, and harassed union stewards. This
complaint was served on Respondent the same day.
F. Discipline Issued to Sears and the GMP Officers in February 201214
1. The February 3 incident involving Sears and ensuing discipline
Sears testified that on the morning of February 3, he began work at 4 a.m.,
disassembling a press and bringing the parts to the machine shop and the storage area. After
completing these tasks, at about 8 a.m., Sears needed to use the bathroom. On the way to the
main bathroom, located in the locker room, he saw Cavaluzzi in the pattern shop working at his
bench, and stopped to say hello. Cavaluzzi asked whether he would be paid for his time at an
upcoming GMP arbitration hearing, and Sears said that Ray Dalton had been denied pay for his
time attending an IUE arbitration. Sears testified that he was leaning on a tall chair in the
pattern shop during this exchange,15 which lasted for about a minute or two. While Sears was
talking to Cavaluzzi, Marczyszak approached them, and asked what Sears was working on in
the pattern shop. Sears testified that he told Marczyszak that he was working on going to the
bathroom, and walked away in that direction.
Marczyszak testified that at around 8:30 a.m. on the morning of February 3, he and
Swanhall were on their way to a scrap review meeting in the quality control conference room.
As they entered the pattern shop area, Marczyszak stopped to put on safety equipment, and
saw Sears on the stool next to Cavaluzzi’s work bench, talking to Cavaluzzi. Marczyszak
testified that as he walked along the corridor toward the quality control conference room he
observed Sears and Cavaluzzi talking. Therefore, instead of going to the conference room he
proceeded until he reached the end of the aisle along the pattern shop, 3 to 4 minutes later. At
that point, Sears and Cavaluzzi were still talking, so Marczyszak approached them and asked
Sears what he was working on in the pattern shop. Sears responded that he was working, and
when Marczyszak asked him on what, Sears responded that he was working on going to the
bathroom. Cavaluzzi had a pattern on his bench and a tool in his hand at the time.
Marczyszak then consulted with Rovello to determine what level of discipline was
appropriate for Sears given the progressive disciplinary system, and directed Foote to prepare
the actual write-up based upon his (Marczyszak’s) observations. Sears testified that later on
February 3, he was called into Foote’s office, and given a counseling by Foote for violating
General Rule 9, which prohibits “Loafing or other abuse of time during assigned working hours.”
Foote told Sears at the time that he did not agree with the counseling, but had been directed to
issue it. Sears said that he had never heard of such a thing. He told Foote that the employees
talk to one another all the time, and that he had not done anything wrong, only said good
morning to Cavaluzzi.16 Cavaluzzi was not disciplined regarding this incident.
The IUE filed a grievance regarding the February 3 counseling issued to Sears, and a
step 2 grievance meeting was held on March 1 with Rovello, Swanhall, Sears, and Barnes.
Sears testified that Rovello read the February 3 counseling, and said that Swanhall had seen

14 All subsequent dates are in 2012 unless otherwise indicated.
15 Sears testified that he experiences pain in his left leg while walking and standing due to a
problem with his spine which requires surgery.
16 Foote did not testify at the hearing.
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Sears sitting down after Sears had visited the bathroom, which confirmed Marczyszak’s
conclusion that Sears was “loafing.” Sears testified that he told Rovello that as a mechanic, he
not only performs physical repair work, but also needs to think about how to repair broken
machinery. According to Sears, he tried to analogize to Rovello’s work by stating that Rovello
was not working only when physically typing words, but also when mentally composing text.
According to Sears, Rovello became upset, and stated that Sears had initially claimed to
Marczyszak that he was working in the pattern shop, as opposed to going to the bathroom.
Sears then became frustrated, and after explaining that he had never claimed to be working,
said, “How many fucking times do I have to tell you that’s not what happened.” Sears testified
that he had previously used vulgar language during grievance meetings.
Rovello testified that the step 2 meeting began with Sears denying that he had been
sitting down while talking to Cavaluzzi, and stating that he hadn’t spoken to Marczyszak.
Rovello testified that Sears then asked her, “What do you do all day?” According to Rovello,
she responded that she was not at the step 2 meeting to discuss her own work, and Sears said
that she sat at her desk. Rovello reiterated that her own activities were not at issue, and Sears
said that Rovello was at her typewriter all day long, and “I want to know what you fuckin’ do all
day.” Rovello testified that at that point she told Sears that his behavior was inappropriate, and
ended the meeting. According to Rovello, Sears had never sworn at her in that manner before.
On March 7, Rovello sent Sears and Barnes a response denying the IUE’s grievance
regarding Sears’ February 3 counseling. In her response, Rovello stated as follows:
Humberto Leon, your IUE Local 485 President, ended our negotiations in
February 2011 with a speech on mutual respect. During the step #2 grievance
Robert Sears steward became abusive and stated to me “Right now I’m asking
you what you are f—ing doing.” The Company does not tolerance [sic] or accept
abusive behavior during our grievance meetings. We respect the Union and
expect respect in return. Further inappropriate behavior will result in discipline
according to the Company’s rules.
(G.C. Exh. 40.)
Subsequently there was a step 3 meeting regarding the February 3 counseling, attended
by Marczyszak, Rovello, Swanhall, Leone, Sears, and Barnes. Rovello testified that Leone
argued that Sears had been a good worker for 24 years, and had just needed to sit down and
rest at the time he was talking to Cavaluzzi. Marczyszak and Sears discussed the incident
again, and Leone said that everyone needed to go to the bathroom. Marczyszak countered that
there was a bathroom right next to Sears’ work station, and sitting in the pattern shop was
different from going to the bathroom. Ultimately Respondent denied the grievance, which was
never moved to arbitration by the IUE.
2. The February 8 incident involving the GMP officers and ensuing discipline
On February 10 and 13, Rovello issued written counselings to Norton, Domeracki,
Cavaluzzi, and Vaast for “Loafing or other abuse of time during assigned working hours.” These
counselings were based on an incident which took place in the pattern shop on February 8.
Rovello testified that on February 7, Hector Sanchez, the GMP’s international
representative, called and told her that he would be coming to visit the facility the next day with
area Vice President Don Seal. Sanchez told Rovello that he wanted to meet with the GMP
officers and introduce Seal to the GMP members at the shop. They arranged for Sanchez and
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Seal to visit the shop during the employees’ lunch period, from 12:30 p.m. to 1 p.m. Norton,
however, testified that the GMP officers expected Sanchez and Seal to arrive at 3:30 p.m.
Rovello testified that Sanchez and Seal arrived at about 12:05 p.m., and chatted with her
in the foyer of the building. After about 15 minutes, Sanchez and Seal asked Rovello to let the
GMP officers know that they were in the plant, so that they could begin the meeting immediately
when the GMP lunch break started at 12:30 p.m. Rovello testified that she went to the pattern
coordinator area, but Norton was not there, and she was unable to locate Hing. She therefore
went to the pattern shop to find Cavaluzzi. Rovello testified that when she entered the pattern
shop, she saw Norton, Cavaluzzi, Domeracki, and Vaast standing around Cavaluzzi’s work area
talking. According to Rovello, as she approached Cavaluzzi’s bench she saw that Cavaluzzi
had a drawer open and the GMP union contract booklet, a small book with a blue cover, in front
of him. Rovello testified that she asked the group what they were doing, and Cavaluzzi put the
book in the drawer and closed it, saying, “I’m sorry.” Norton had a folder that he closed, and
Vaast and Domeracki left Cavaluzzi’s bench. Rovello told the group that Sanchez and Seal
were in the facility, and Norton then opened his folder and attempted to hand Rovello
something. Rovello told Norton, “Not right now.” Rovello testified that she did not know how
long the group had been together before she approached them, but there was no pattern in the
area at the time.17 Rovello testified that she returned to the foyer and told Sanchez and Seal
that the GMP officers were not working.
Norton, Vaast, and Domeracki testified that right before the 12:30 p.m. lunch break on
February 8, Norton had brought a broken pattern to the pattern shop to be repaired. Norton and
Vaast testified that they were standing around Cavaluzzi’s bench with Cavaluzzi, discussing
how to repair the pattern, which was on Cavaluzzi’s bench, and who was going to work on it.18
Domeracki testified that he was at his own bench working on another job at the time, but stated
that there was a job on Cavaluzzi’s bench. Norton testified that they had been discussing the
pattern for about 4 minutes, when Rovello approached him from behind. Norton, Vaast, and
Domeracki testified that Rovello asked them what they were doing. Norton said that they were
just breaking up and began walking away, when Rovello said that Sanchez and Seal were
waiting in the lobby. Norton told Rovello that he had grievances that had not yet been signed,
and that he wanted to see her later in the day. The bell then rang for lunch, and the GMP
officers went to meet with Sanchez and Seal. Norton testified that at the time he was carrying
paperwork for the pattern repair in a manila folder.19
On February 10, Rovello issued a counseling to Norton for “Loafing or abuse of time
during assigned working hours.” The counseling was issued in Arnson’s office, with Rovello,
Arnson, Hing, and Norton present. Rovello began by describing the discipline to Norton, and
handing him a copy of the counseling. Norton and Hing testified that Rovello told him that he
was engaged in union business at the time that she approached him, and Norton said that she
was wrong. According to Norton and Hing, Norton told Rovello that she was issuing the

17 Rovello testified that she was not familiar with every pattern in the shop.
18 Norton and Vaast testified that Norton typically brings a broken pattern to the pattern
makers to discuss it with them before preparing the card which records the work necessary for
the repair.
19 Arnson confirmed that when Norton brings a broken pattern to the pattern shop, he also
carries paperwork identifying the broken pattern or plate and the work to be done. Norton
testified that he also keeps union documents such as grievances and other non-work-related
items such as birthday and other greeting cards in this manila folder.
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discipline to him in retaliation for the unfair labor practice charges that he had filed against
Respondent, and Rovello denied doing so. Norton stated that he was not loafing, but had
brought a pattern to the pattern shop. Norton then told Rovello, that she had fabricated the
entire incident, referred to it as “bullshit,” and crumpled up the counseling and threw it on the
floor.20 Norton then left Arnson’s office in order to calm himself, and Rovello sent Hing after
him. When they returned, Norton and Hing testified that Norton apologized to Rovello, telling
her that she “got his blood pressure up.” Norton testified that as Rovello left the meeting she
was smiling, and he told her, “you got what you wanted.” Norton denied telling Rovello that he
was going to get even with her.
Rovello also testified that as she was reading the counseling, Norton took it out of her
hand, said, “This is bullshit,” and crumpled it before leaving the room. According to Rovello,
when Norton returned he told her that the discipline wasn’t right, and Hing said that Rovello
needed to “give [Norton] a break.” Norton told Rovello, “this is not the way I work. This is not
the type of person I am.” Rovello confirmed that Norton told her, “You got my blood pressure
up.” According to Rovello, Norton then said, “I’m not going to stand for this. I’ll get even.” He
then left the room again, and Hing signed the counseling at Rovello’s instruction. According to
Rovello, during this meeting Norton and Hing did not contend that the employees had been
working on a pattern at the time that she approached them. Arnson prepared a statement
describing this meeting which also states that Norton told Rovello, “you keep smiling Mary we’ll
get even.”21
Vaast, Domeracki, and Cavaluzzi were issued similar counselings by Rovello on
February 13. Rovello, Butler, and Hing were also present at this meeting. Vaast and
Domeracki testified that Rovello told the employees that she thought they were having a union
meeting, and Cavaluzzi said that they were not, that they were talking about a job. Domeracki
also testified that Hing told Rovello that the employees should not be written up, but Rovello
insisted that they were doing union business. Rovello testified that Cavaluzzi said, “This isn’t
fair,” but did not claim at this meeting that the employees were discussing a job.
Pursuant to the collective-bargaining agreement’s grievance and arbitration provisions,
the GMP filed a written grievance regarding the counselings issued to Norton, Vaast,
Domeracki, and Cavaluzzi within 5 days of February 10. In its grievance, the GMP contended
that Norton and the pattern makers were discussing the repair of a pattern plate when Rovello
approached them, and not conducting union business. Within the next 2 weeks a step 2
meeting was held with Rovello, Butler, Cavaluzzi, and Hing. Hing testified that Vaast and
Domeracki were also present during this meeting. Hing stated that Rovello told the employees
that she saw them talking when she approached them in the pattern shop on February 8, and

20 Norton testified that he also told Rovello that he had never been written up for the
February 2 incident mentioned in Rovello’s February 10 counseling. Rovello testified that she
did not discipline Norton or Hing for this incident.
21 The following week, there was a disciplinary meeting regarding Norton’s use of vulgarity
during the February 10 meeting with Rovello and Arnson. This meeting was attended by
Marczyszak, Swanhall, Butler, Norton, and Hing. Marczyszak told Norton that he had
threatened Rovello during the February 10 meeting by telling her that he intended to get even
with her, and Norton responded that he had only said to Rovello, “you got what you wanted.”
With respect to the vulgarity, Norton admitted using the term “bullshit.” This was apparently the
end of the matter, and Norton was not disciplined regarding any remarks he may have made to
Rovello.
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assumed that they were doing union business. Hing testified that he protested that the
employees were all in their work areas, and Rovello countered that one had the union book
open on his desk. Domeracki said that he was working, not talking, at the time, and Rovello
said that he was probably the only one who was working. According to Hing, Cavaluzzi said
that he was standing at his work desk with the drawer open. Rovello testified that at this
meeting Cavaluzzi called her “delusional,” and told her, “There’s one of you, there’s four of us.”
Butler also testified that Cavaluzzi made these statements whereas, Hing testified that he did
not. According to Butler, at this meeting Rovello also stated that she did not believe the
employees’ claim that they were working on a pattern at the time. Rovello refused to rescind
the counselings, and the meeting ended. Rovello testified that she later called Lochman,
because she was upset at having been called delusional.
On March 30, Norton wrote to Respondent to move the grievance to step 3 of the
grievance procedure. Subsequently a step 3 meeting was held with Hector Sanchez, Norton,
Hing, and Cavaluzzi attending for the GMP, and Marczyszak, Swanhall, and Rovello attending
for Respondent. Rovello testified that at this meeting Hing stated that on February 8, the
disciplined employees were “getting ready for the meeting,” but Sanchez and others told him
that because he was not present at the time he should not discuss it. Hing testified that the
meeting focused on Norton and his conduct when presented with the counseling, although
Norton also contended that he was discussing or working on a pattern on February 8. Rovello
and Hing testified that Respondent proposed removing the four counselings in exchange for the
GMP’s withdrawing the charges underlying Region 34’s complaint, but the Union refused to do
so. Rovello contended in her testimony that after the step 3 meeting, Sanchez told her that the
GMP officials “stretch the truth a lot,” and may have been referring to a pattern they were
working on earlier on the morning of February 8. Norton testified that prior to this meeting the
GMP had requested information regarding previous discipline for loafing, and Rovello
responded that the company had only begun to refer to incidents involving employees’ failure to
work during worktime as “loafing” at that point. At the time of the hearing, the GMP grievance
regarding the discipline issued to Norton, Vaast, Domeracki, and Cavaluzzi based upon the
February 8 incident was still unresolved.
G. The March 2 Meeting with Lochman
In March, Lochman visited the Burndy facility on two occasions for labor-management
meetings, in order to discuss the overall relationships between Respondent and the Unions.
The meeting with the GMP took place on March 2 in the facility’s conference room, from
approximately 10 a.m. to 2 p.m. Lochman, Marczyszak, Swanhall, and Rovello were present for
Respondent, and GMP Vice President Donald Seal, Sanchez, Norton, Hing, and Cavaluzzi were
present for the GMP. Norton, Hing, Lochman, Marczyszak, and Rovello testified at the hearing
regarding this meeting.
Hing testified that Seal and Lochman stated that the meeting had been arranged
because of the large number of pending grievances, and the generally contentious state of the
relationship between Respondent and the GMP. Norton testified that Lochman said that Norton
himself appeared to be the biggest problem at Burndy, and that the GMP leadership—Norton,
Vaast, and Hing—were “troublemakers.” According to Norton and Hing, Lochman said that the
new GMP officers had created a big problem by filing a large number of grievances, which had
not occurred before Norton became president. Norton responded that he did not create the
problems in the plant, and that the major difficulty was Marczyszak, who was interfering with the
employees’ work. Norton continued that the GMP’s problems with Marczyszak had begun
before he was elected GMP president, and that Valentin had in fact resigned as president after
Marczyszak had threatened him. Hing testified that he told Lochman that Norton had a better
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idea of what was going on in the plant than Valentin, and was more vigilant in terms of
investigating and enforcing the contract. The parties also discussed the January incident where
Marczyszak berated Cessa for breaking the pattern plate. Seal stated that both sides had
become polarized, and needed to find a way to move forward out of their deadlock. Seal said
that the Union realized that its members had good jobs, compensation, and benefits, and that if
there was tension on the shop floor the parties needed to figure out what was causing it, and
consider to the perspectives of everyone involved.
Norton testified that Lochman echoed some of these sentiments, stating that
Respondent and the GMP enjoyed a good relationship, with very few grievances and no
arbitrations. Lochman stated that the GMP bargaining unit wages were 20 to 70 percent above
market, with excellent benefits, and employee turnover was consequently very low. Lochman
also stated that Marczyszak had not been disrespectful to the GMP, and ran an excellent plant.
As a result, Lochman said that Marczyszak’s position would not be in jeopardy regardless of the
Union’s efforts. The GMP agreed to attempt to work with Respondent to try to resolve the
outstanding grievances, which would hopefully improve the relationship. Norton and Hing
testified that during the meeting, Lochman stated that if the GMP kept raising grievances,
management was going to come down hard on the union. According to Norton, at the end of
the meeting everyone shook hands, and Seal later told him that it had gone well, and everyone
should start to work on moving in a more positive direction. However, Seal also told Norton that
the union was “not going to get anywhere” with Marczyszak.
Lochman testified that he arranged for the March 2 meeting while talking to Seal about
Respondent’s relationship with the GMP at an arbitration which took place earlier in the year.
Lochman testified that the meeting began with Seal expressing his concern over the change in
the relationship between the GMP and the company during the past year. Seal stated that
Respondent provided very highly paid jobs22 which he did not want to lose, and that he was
concerned that at some point Hubbell, Respondent’s new owner, would decide that the Bethel
facility was not viable and close it. Norton then spoke, saying that there was quite a bit of stress
on the shop floor, and that he wanted to see it reduced. Lochman testified that he then stated
that Respondent had had a very good relationship with the GMP, with very few arbitrations and
only six grievances per year.23 However, “all of a sudden” 19 grievances had been filed in 6
months, as well as multiple unfair labor practice charges, so that the company was now “getting
it in the groin.” As a result, Lochman stated that “under the new regime I saw that it was really
disintegrating,” with relationships that had been developed through negotiations deteriorating.
Lochman stated that because Norton had only been with the company for 18 months and had
never attended negotiations, he was unaware of the background of compromise that
Respondent and the GMP had achieved over the years. Lochman asked whether management
had ever used profanity with the union representatives, as they had with Marczyszak, and Hing
said that they had not. Lochman concluded that overall there had been a “major change” as a
result of the new GMP leadership. Lochman also said that Hubbell did not have similar
problems at their other unionized facilities, including their GMP-represented facility in Leeds,
Alabama, and reiterated that there had been a major increase in grievances since Norton
became president. Lochman stated that he wanted to develop a partnership between
management and the union leadership, which had been the case when Valentin was president,

22 Lochman also testified that he made this point during the meeting, in the manner
described by Norton.
23 Lochman made his remarks based on a prepared outline of topics that he intended to
cover, which also contains some notes of the ensuing discussion.
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as opposed to a confrontational relationship. Lochman provided examples of Respondent’s
attempts to do so, such as agreeing to a 4 year collective-bargaining agreement and permitting
the GMP to negotiate its contract after the IUE. Lochman also confirmed that the parties
discussed the petition engendered by the Cessa incident, and stated that the unions wanted the
company to get rid of Marczyszak, which he said was “not going to happen.” Lochman denied
stating at the meeting that the company intended to come down on the GMP officers.
Marczyszak and Rovello also testified that Lochman never made such a statement. Lochman
testified that Seal later said that he felt that the meeting had gone very well, and the parties had
cleared the air. Marcyszak and Rovello testified that they had a similar impression.24
H. The April 12 Discipline Issued to Sears and Hing
On April 12, Sears received a verbal warning and Hing received a counseling, based
upon an interaction between them earlier that day as Hing was driving a forklift in the area of the
old machine shop. Sears, Hing, and Butler testified regarding this incident.
Sears testified that at approximately 7 a.m. on the morning of April 12, he was retrieving
his forklift from the old machine shop area when he passed Hing, who was driving a fork lift and
picking up a barrel of scrap in the old machine shop. Hing had a copy of the GMP contract
booklet on top of his clipboard on the forklift. Sears testified that he said good morning to Hing,
and asked Hing if the GMP contract was on the page for bereavement pay. Sears was
interested in looking at the contract’s bereavement pay provision, because the day before Hing
had asked him about the availability of bereavement pay for the death of a step relative, which
the IUE contract did not provide for. Sears asked Hing to borrow the GMP contract to take a
look, and pulled it off Hing’s clipboard. When he looked at the contract, it was not open to the
page for bereavement pay, so Sears said, “that’s not the article,” and stuck it in his back pocket
as he walked toward his forklift. Hing told Sears that he had to go, because people were waiting
for him. Sears testified that the air compressor in the old machine shop was running at the time,
which creates a noise level of 85 decibels, so that any extended conversation would have been
impossible. According to Sears, his entire encounter with Hing lasted for about a minute.
Hing testified that on April 12, Sears approached him as he was using a forklift to bring
material out of the pattern area. Hing testified that Sears took his GMP contract booklet from off
of a clipboard he had on the forklift. At that point, Hing stopped the forklift, and Sears
proceeded to open the book. According to Hing, Sears was talking but he did not pay attention.
Hing said that he saw Butler walk by at the time. Sears then put the book back on the clipboard,
and Hing restarted the forklift and left the area. Hing testified that the entire interaction lasted “a
moment.”
Butler testified that on the morning of April 12 he was on his way to the pattern shop to
collect information on completed jobs when he saw Hing sitting in his forklift, and Sears leaning
against it with an open book in his hand, reading aloud. Butler could not recall whether
machinery was running in the area at the time, but testified that he heard Sears say “excused
absences;” Hing was silent. Butler testified that he observed Sears and Hing for “more than a

24 Lochman had a similar meeting with the IUE on March 27, attended by the same
company representatives and by Leone, Agramonte, Barnes, and Sears for the Union. At this
meeting, Sears gave Marczyszak a copy of an unfair labor practice charge alleging that his
February 3 counseling, and Rovello’s March 7 threat to discipline him, violated Sec. 8(a)(1) and
(3) of the Act.
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minute,” and concluded that Hing and Sears were not working. He therefore went to look for
their supervisors, instead of proceeding to the pattern shop. Butler was unable to locate Arnson
and Foote, so he reported the incident to Marczyszak, who directed him to discipline Sears and
Hing. Butler consulted with Rovello, who informed him that for “abuse of time” Sears was at the
verbal warning stage of progressive discipline. Foote also consulted with Rovello regarding the
counseling issued to Hing for this incident.
Sears testified that around lunchtime, he and Foote were called to the machine shop
supervisor’s office. Marczyszak was in the office, and Barnes was called in. Marczyszak said
that he was giving Sears a verbal warning for loafing because he was talking to Hing, and gave
Foote a write up to read. Foote read it and told Sears that it was a surprise to him, because he
knew nothing of the underlying incident. Marczyszak told Sears that he had been abusing time,
and Sears stated that the write up constituted harassment, because he had done nothing
wrong. Hing testified that Rovello later called him into the conference room, with Norton also
present. Rovello read the discipline, a counseling, and gave a copy to Hing. Hing told Rovello
that he was not talking to Sears, but had been working at the time.
A step 2 meeting regarding the discipline issued to Sears was held with Sears and
Barnes, and Rovello, Butler, and Foote. Sears testified that Rovello said that he was being
disciplined for abuse of time, as Butler observed him discussing a contract with Hing. Sears
protested that Butler was wrong. According to Sears, Butler said that he had seen Sears
reading a specific paragraph of the GMP contract regarding excused absences. Sears said that
Butler was mistaken. Rovello testified that Sears stated that he was going “from Point A to
Point B” in the shop when he saw Hing, said hello, and pulled a book off of Hing’s forklift.
According to Rovello, she asked Sears what book he was referring to, and Sears refused to tell
her. Rovello also testified that Sears denied speaking to Hing at this meeting.
Hing testified that at the step 2 meeting regarding his counseling, he told Norton,
Swanhall, and Rovello that he was working when Sears walked by and picked up his GMP
contract book. At that point, Butler passed by as well. Swanhall brought Butler into the
meeting, and according to Hing, Butler admitted that he had only seen Hing for “10 seconds,”
and that Hing didn’t speak. Rovello asked Hing what he and Sears were talking about, and
Hing contended that it was none of her business. Rovello continued to pose the question to
Hing, and and Norton interrupted her, saying, “We ain’t in Russia.” At that point, Rovello ended
the meeting.
A step 3 meeting regarding the verbal warning issued to Sears was held on May 25,
attended by Sears, Barnes, and Leone, and by Marczyszak. Leone argued that the company
should rescind the warning, because it seemed petty to him, an attempt to push the Union “to
the edge.” Marczyszak testified that Sears said that he had asked Hing how he was doing and
took the book from Hing’s forklift, because he wanted to look up something that Hing had asked
him about earlier. Marczyszak testified that Sears contended that the incident was very brief,
only a few seconds, and also claimed that he and Hing were discussing the company handbook,
and not a union contract. Sears said that things had begun to deteriorate in January 2012, and
Marczyszak responded that Sears had been issued numerous disciplines stretching back to
2008.25 Rovello testified regarding this meeting as well, but stated that Sears did not speak at
all. Sears testified that at this meeting he never denied asking Hing whether he could see the
GMP contract on Hing’s forklift.

25 Sears testified that he was referring to discipline for loafing when he made this remark.
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A step 3 meeting regarding Hing’s counseling was also conducted. Marczyszak testified
that at this meeting, Hing contended that he was effectively forced by Sears to stop while he
was driving the forklift.
The grievances regarding the discipline issued to Sears and Hing based on the April 12
incident are still pending.
I. The counseling issued to Radames Velez
Radames Velez has been employed by Respondent for 18 years, and is now a lead
person. Velez works from 4 a.m. to 12 p.m. Monday and Tuesday, and from 4 a.m. to 3:30 p.m.
Wednesday, Thursday, and Friday. Velez has no specific assigned work area. He begins his
shift by preparing machines for production, and then informs the cutoff operators and grinders
as to what needs to be done as the shift progresses. Velez is a member of the GMP bargaining
unit, but has not been an officer since he was lead steward from 1996 to 1999. Arnson is his
supervisor.
Velez testified that on April 12 he was going through the pattern shop to go to the
bathroom when he stopped to talk to Cavaluzzi about the previous day’s baseball game. Velez
testified that after speaking to Cavaluzzi for a couple of minutes, he saw Rovello approaching
them, and walked toward her. According to Velez, Rovello asked whether they were talking
about work, and Velez stated that they were discussing sports. Rovello testified that she asked
Velez what he was working on, and Velez stated that he was not working, he was just having a
conversation. Rovello told Velez that he was not supposed to be in the pattern shop,26 and
Velez testified that he apologized to be polite. Rovello told Velez that she was going to give him
a counseling, and walked away.
The next day, Marczyszak and Rovello issued a counseling to Velez in Arnson’s office.
Velez testified that Hing was present also. Velez testified that he did not sign the counseling
because he didn’t believe that he was doing anything wrong by talking to Cavaluzzi.27
J. The May 3 Written Warning Issued to Sears and Respondent’s Refusal to Permit IUE
Representatives to Use the Office Photocopier for Copying Grievances
Sears testified that on May 3, at approximately 8:40 a.m., he was on his way to the
drinking fountain next to the pattern storage area,28 when he saw Norton passing by with a
pattern to put away. They said good morning, and Norton asked Sears if he wanted to attend
an upcoming meeting with an NLRB agent. Sears asked when the meeting would occur, and
said he might not be able to make it if he was scheduled to work. According to Sears and
Norton, this entire interaction took a minute or two. Marczyszak then approached Sears from

26 Rovello and Butler stated that Velez had no work-related reason to be in the pattern shop.
27 Rovello testified that Cavaluzzi was not disciplined as a result of this incident, because he
appeared to be working at the time.
28 Norton testified that the water cooler is approximately 2 feet from his work bench.
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behind, and asked him what he was working on, and whether he had work to do in the
maintenance department.29 Sears said that he could probably find some, and left.
Butler testified that he was going to a meeting in the quality control conference room
when he saw Sears standing in the pattern prep area. Butler believed that Sears had no work-
related reason to be in that area, so when he arrived at the quality control conference room for
his meeting, he told Marczyszak that Sears was “hanging around the pattern storage area . . .
not working.” Marczyszak testified that he stepped into the hallway and saw through a window
in the doorway that Sears was standing next to Norton’s bench, talking. Marczyszak testified
that he observed Sears for “three or four minutes” before approaching him and asking him what
he was working on and whether he had any work to do.30 Sears said no, so Marczyszak asked
him whether he had work in the maintenance room. Sears said that he had just come to get a
drink of water, and left.
Marczyszak testified that few hours later in the office, he saw Sears copying something
on the office copier. Marczyszak testified that he asked Rovello whether Sears was supposed
to be there, and she answered no. Marczyszak then approached Sears and asked what he was
doing, and Sears replied that he was making a copy. Marczyszak told Sears he was not
supposed to be copying documents on worktime, and Sears said that he always did so. Sears
testified that since the beginning of his employment he and the other IUE officers had used the
office copier to copy grievances and other union related documents, on many occasions in front
of Rovello’s predecessor, Joan Marie Bresnahan. According to Sears, he also used the office
copier in December 2011 to copy medical records for submission to human resources. Sears
testified that he was never before required to wait until lunch or break time to use the copier.
Some time on May 3, Sears was issued a written warning for “loafing or other abuse of
time” by speaking with Norton in the pattern area that day.31 The May 3 written warning also
stated that Marczyszak had observed Sears at the office copier on May 2, engaged in nonwork-
related activity during worktime.
A step 2 meeting regarding the discipline was conducted on May 18, with Barnes, Sears,
Swanhall, and Rovello. Rovello testified that Sears contended that he was only getting a drink
of water, and stated that the company was trying to fire him. According to Rovello, Sears said
that he did not tell Marczyszak that he was getting a drink of water when Marczyszak confronted
him in the pattern area. Sears testified that Rovello stated that Barnes had already been written
up for using the officer copier, so that Sears should have known that he was not permitted to
use it. Sears said that he did not recall that, and Rovello said that he must have amnesia.
Sears responded that he would give Rovello a nickel for the piece of paper he used, and she
said that was insulting.
A step 3 meeting was also conducted with Marczyszak, Swanhall, Rovello, Leone,
Sears, and Barnes. Rovello testified that during this meeting Leone stated that Sears had been

29 Norton testified that Marczyszak approached him and Sears immediately after Sears
greeted him. Norton testified that he could not recall the specific statements made by Sears
and Marczyszak.
30 Butler testified that Marczyszak observed Sears through the window for “a moment or two,
or a minute or two” before leaving to approach Sears.
31 Marczyszak testified that Norton was not disciplined because he appeared to be working,
as there was a pattern on his desk at the time.
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employed for 24 years, was an excellent mechanic, and should not be penalized for needing a
drink of water. Marczyszak stated that Sears could have gotten a drink of water outside the
maintenance office or inside the quality room. According to Rovello, Sears did not speak during
this meeting. The IUE never filed a grievance regarding Respondent’s refusal to allow Sears to
use the copier for nonwork-related purposes.32
K. The May 29 Suspension Issued to Sears
Sears testified that on May 29, he arrived at work at 4 a.m. After he repaired a press in
the machine shop and the Wheelabrator, Arnson asked him to look at the Morgan furnace.
After working on the furnace, Sears chained open the foundry and maintenance doors and
turned on a fan. He then went to his locker area in the maintenance department, took off his
Burndy uniform shirt, and hung it up.33 Sears’ locker area is separated from the rest of the
maintenance department by a curtain. He opened a can of Pepsi and sat down on a stool in the
locker area34 to rest for a minute before proceeding to his next assignment, working on the No.
3 aluminum furnace. He had been sitting for less than a minute when he heard the voices of
Marczyszak and Arnson. Marczyszak opened the curtain, and Sears stood up. Marczyszak
asked what time Sears had arrived at work, what he had done, and what he was working on.
Sears explained what he had done that morning, and described his next task. Marczyszak and
Arnson then walked away, Marczyszak saying to Arnson, “You’re my witness— you saw him
sitting there.” Sears testified that no one had ever entered his locker area in the maintenance
department in that fashion, and that if he was needed he would typically be paged over the
telephone.
Marczyszak and Arnson also testified about this incident. Marczyszak testified that he
ran into Arnson on one of his morning walk-throughs when Arnson called him over to look at the
automated sand controller. As they were just outside the maintenance area, Marczyszak
mentioned that he had seen Murphy, another mechanic, earlier in the day, and asked Arnson
where Sears was.35 Arnson reported that Sears had been working on the furnace a little while
ago, and Marczyszak suggested going to the maintenance room to try to locate him. When they
arrived at the locker room, Marcyzszak pulled back the curtain and saw Sears sitting down with
the soda, wearing a white T-shirt, with “a shocked expression of his face.” Marczyszak asked
Sears when he started and what he had worked on, and Sears responded, telling him that he
had been working on the furnace. Marczyszak testified that he asked Sears what he was
working on at that point, and Sears responded, “I’m working on getting a soda.” Marczyszak
asked Sears “Shouldn’t you be working?” and Sears left. Marczyszak confirmed that Arnson
had also seen Sears, and said, “You’re my witness.”36 Marczyszak then met with Rovello to
determine what level of discipline was appropriate.

32 Marczyszak testified that although such a grievance would not be timely, the company
“would consider” waiving its prerogative to challenge the arbitrability of such a grievance on
timeliness grounds.
33 Sears was wearing a T-shirt under his uniform shirt.
34 Sears testified that he had purchased this stool a few days earlier, and uses it all over the
facility.
35 Arnson testified that Marczyszak was not looking for Sears in particular, but only
suggested going through the maintenance room.
36 Arnson generally corroborated Marczyszak’s account, but did not testify that Sears told
Marczyszak he was “working on getting a soda.” Marczyszak testified that he assumed that “it
Continued
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At the end of the work day, Sears was paged to the conference room, where
Marczyszak and Swanhall issued him a written suspension with Barnes present. Marczyszak
read the suspension, and Sears said it was ridiculous because he was just getting a drink.
Barnes also argued that it was hot at the time, Sears had just worked on the furnace, and the
employees should be permitted to get a drink in such circumstances even if it was not break
time. Sears said that he had only taken a few sips from the can of soda, and had not been
sitting for a long period of time. Marczyszak responded that, as he had told Sears before,
worktime was for work, and because Sears was not on break, he was abusing time.
Marczyszak also told Sears that Sears had not replied when asked what he was working on.
Sears was then suspended, and told not to return to work until the following Monday.37
Rovello testified that she attended a step 2 meeting regarding Sears’ suspension with
Swanhall, Barnes, and Sears. According to Rovello, at this meeting Sears said that he was
thirsty and drinks soda, not water. Barnes said that Sears needed a drink, because he began
work at 4 a.m. and the regular break was not until 9 a.m. Rovello said that the company was
willing to make accommodations in such situations, but that Sears should have gotten
permission to take a break from Arnson. Rovello also attended a step 3 meeting with
Marczyszak, Swanhall, Leone, Barnes, and Sears. At this meeting, Marczyszak offered to pay
Sears for Saturday in order to resolve the grievance, and the Union declined. The Union has
moved the grievance to arbitration, and a hearing is being scheduled.
L. Evidence Pertaining to the Complaint’s Allegation that Sears was Subjected to More
Onerous Working Conditions and Monitoring
Sears contended during his testimony that Marczyszak continued to follow him and
question him regarding his activities after he returned from his suspension. Sears testified that
Marczyszak frequently came to the maintenance department, and that although he did not
question Sears, there was no work-related reason for Marczyszak to be there. Velez also
testified that he noticed Marczyszak repeatedly looking for Sears in the maintenance
department during the spring of 2012; although Marczyszak could have spoken to Velez or
another maintenance employee if some problem needed to be addressed at that time, he did
not. Sears testified that on other occasions, typically between 4 and 7 a.m., Marczyszak
questioned him about what he had been doing and what he was working on. Sears also
testified that he has observed Marczyszak standing behind machines or pieces of equipment,
watching him. Sears testified that on one occasion when he was working on the aluminum
furnace, Marczyszak asked Velez where Sears was after having walked by that particular
furnace.38 On several other occasions, Marczyszak entered and exited the boiler room
immediately after Sears did. Sears testified that Marczyszak does not question other
employees about what they are doing in the same manner that Sears is questioned. Sears
testified that around the time that the NLRB issued its initial complaint “things calmed down
some,” but that Marczyszak had engaged in this behavior during the week prior to Sears’
testimony on November 8. Sears testified that, in his opinion, Marczyszak had been monitoring
_________________________
had to be minutes that [Sears] was in there sitting there,” because he and Arnson had not seen
Sears on their way to the maintenance room.
37 Sears testified that he missed 4 days of work— Wednesday, Thursday, Friday, and 9
hours at time and a half on Saturday. Marczyszak confirmed this testimony.
38 Sears testified that Marczyszak would not have been able to see him when he walked by,
given the position from which he was working on the furnace.
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and harassing him consistently since 2009, but that prior to February 3, Marczyszak did not ask
him what he was doing on a regular basis.
Marczyszak testified that he has followed the same daily schedule of activities in the
plant since April 2008. Marczyszak testified that he typically arrives between 5:30 and 6 a.m.,
and has a practice of doing “walk-throughs” of the facility several times each day. The first of
these walk throughs usually takes place a little after 6 a.m. During this walk through,
Marczyszak verifies that employees scheduled to work the morning overtime hours are actually
present, ensures that machinery is operating or arranges for repairs, and is on the lookout for
potential safety issues. Marczyszak testified that he begins from his office, and proceeds to the
machine shop, where he checks on the chucker and the CNC machines, and then to the lathes.
Marczyszak then visits the foundry finishing area, checks the condition of the backyard outside
the facility, and looks into the maintenance area. He then checks the Hunter, an automated
molding machine, and visits either the pattern shop area or the furnaces, depending upon what
work is being performed. As he walks through the plant, Marczyszak greets the various
employees at work as he sees them, and asks for explanations of their work or other information
if necessary. Marczyszak testified that he has encountered Sears during these morning walk
throughs “somewhat frequently.” Marczyszak testified that the entire process usually takes 10-
15 minutes, but can take longer if there are production problems or equipment needing repairs.
Marczyszak testified that at approximately 8 a.m. each day he conducts a scrap review
meeting in the quality control conference room, to discuss methods for eliminating unused
materials. Afterwards, he returns to his office via the core area, to check on the Hunter machine
and the furnaces. Marczyszak tries to do an afternoon walk-through between 1:30 and 2:30
p.m. each day, depending upon his schedule and other events in the facility. Finally,
Marczyszak performs a third walk-through after 3:30 p.m., when production ceases for the day,
to make sure that all areas are clean and the doors are locked. Three days a week he and
other managers review the work schedule in the pattern shop area.
Marczyszak testified that during his walk throughs he asks Sears what he is doing if he
cannot tell what Sears is working on at a particular time. According to Marczyszak, sometimes
Sears responds with an explanation, and sometimes he does not. Marczyszak generally denied
following or monitoring Sears.
M. The Allegedly Unlawful Work Rules
The complaint alleges that four work rules, or provisions in Respondent’s employee
handbook, violate Section 8(a)(1) of the Act. Although the IUE apparently contends that the
employee handbook does not apply to its bargaining unit employees, Marczyszak testified that
Respondent takes the position that the handbook applies to employees in both bargaining units.
The evidence does not establish that any employees have been disciplined for violating the
allegedly unlawful work rules or handbook provisions. The disputed provisions are as follows:
4. PROTECTING GROUP ASSETS
a) The Group recognizes that preserving, protecting and responsibly using
company assets including intellectual property is essential to remain competitive
and to serve the interests of its shareholders, therefore we must take all
appropriate measures to protect these assets and to respect third parties’
proprietary information rights.
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b) The Group requires all to safeguard and not disclose any knowledge, decision
or any information about BURNDY which may in any way prejudice the interests
of BURNDY or any confidential information to any party outside BURNDY, unless
such disclosure is necessary to enable BURNDY to carry out its business
properly and effectively and there is no reason to believe or suspect the
information will be missed or improperly disseminated by the recipient; or where
it is required by the law whereupon the Legal Department shall be immediately
notified prior to any disclosure where possible.
c) The confidentiality obligations of BURNDY’S employees are further subject to
specific provisions in their respective employment contracts.
* * *
DRESS CODE
BURNDY LLC generally allows business casual wear in all of its US facilities.
The Company maintains reasonable standards for business attire during regular
work hours, and requires each employee to dress in a manner appropriate to
his/her job responsibilities. Employees are expected to use good judgment,
consider safe practices, and dress appropriately for thier job. For certain
positions, the Company may require and provide special attire.
Employees should keep in mind that the Company regularly hosts customers,
suppliers and others who are visiting the Company to decide whether or not to do
business with BURNDY. In such cases, more formal business attire may be
appropriate. The same consideration should be employed if an employee is
required to make external visits
The Company reserves the right to address an employee’s attire, jewelry, or any
aspect of grooming which the Company believes to be unsafe, distracting,
unsanitary, not promoting customer good will or the subject of business
disruption or complaint.
Specific guidelines for each facility may be obtained from the local Human
Resources Representative.
* * *
PUBLIC STATEMENTS
Due to the importance of communications with the news media, which includes
newspapers, trade publications, radio and television stations and any other public
medium, inquiries are to be referred to an handled only by or at the direction of
the Vice President of Human Resources for BURNDY LLC or the Legal
Department or both. This is to ensure that all information about the Company
and its business and operations provided to the media is accurate and consistent
with the Company’s policies. Marketing communications are the responsibility of
the designated division of MarCom personnel.
* * *
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GENERAL RULE VIOLATIONS
6. Soliciting or collecting contributions for any purpose on Company time, except
when authorized to do so for Company-sponsored programs (e.g. United Way).
N. Respondent’s Refusal to Pay the Cost of Printing an IUE Contract Booklet
Sears, Lochman, Marczyszak, and Rovello testified regarding the 2011 negotiations
between the IUE and Respondent, and subsequent discussions regarding whether Respondent
would share the cost of printing the IUE 2011–2014 collective-bargaining agreement in booklet
form. Sears testified that he had been involved in approximately six of the most recent
negotiations for successor IUE collective-bargaining agreements. Sears testified that although
the subject of which party would bear the cost of printing up a contract booklet was never
discussed during those negotiations, Respondent has paid for the printing of the contract
booklet. Sears testified that during the negotiations for the 2011 agreement, the IUE never
proposed that Respondent print or pay for the printing of the contract booklet.
Lochman, who acts as Respondent’s chief spokesperson during negotiations,
Marczyszak, and Rovello testified that during the 2008 and 2011 negotiations with the GMP, the
company eventually agreed to split the cost of printing the GMP contract booklet with the Union.
This agreement is reflected in Respondent’s last, best, and final offer to the GMP during the
2011 negotiations. However, Lochman, Marczyszak, and Rovello testified that in the 2011 IUE
negotiations there was no proposal by the Union for the company to shoulder or contribute to
the cost of printing the contract booklet. Lochman testified that the IUE’s attorney, David Cann,
made a “take it or leave it” final proposal toward the end of negotiations, which the company
accepted. The IUE’s final proposal did not mention anything about printing the contract booklet.
Rovello testified that at the 2008 negotiations between Respondent and the IUE, which
she attended, the IUE initially proposed that the company pay the full cost of printing the
collective-bargaining agreement in booklet form. Rovello testified that the parties eventually
agreed that each would pay half the cost of doing so.39
Following his March 2 meeting with the GMP representatives to discuss their overall
collective-bargaining relationship, Lochman conducted a similar meeting with the IUE
representatives, which took place on March 27. Sears testified that during the March 27
meeting he attempted to raise an issue involving the still unsigned IUE contract. However,
Lochman said that he wanted to discuss that issue later in the meeting, and eventually left the
meeting before it could be addressed. After the parties finished discussing three outstanding
grievances, Sears handed Marczyszak the unfair labor practice charge alleging that his
February 3 discipline, and Rovello’s March 7 letter, violated Sections 8(a)(1) and (3) of the Act.
This charge also alleged that Respondent violated Section 8(a)(5) by refusing to finalize the
2011–2014 contract. The next day, Respondent put together exhibits necessary for the contract
to be finalized, and Agramonte, Barnes, and Sears signed it on behalf of the Union.
On April 11, Leone apparently visited Respondent’s facility and signed the 2011–2014
IUE contract. Rovello testified that during Leone’s visit he asked whether the company would
contribute to the cost of printing a contract booklet. Rovello testified that she responded that the
company was satisfied with a regular paper copy and the subject had not been discussed during

39 It is not clear from Sears’ testimony whether he attended the 2008 negotiations.
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negotiations. As a result, the matter was closed. Rovello reiterated this position in an email to
Leon dated April 24, which also contended that the IUE’s attorney had stated that the Union was
satisfied with a regular paper copy of the contract as well.
Sears testified that at the step 3 meeting on May 25 regarding his April 12 discipline,
Leone asked Rovello about printing the IUE contract booklet. Leone asked the company to pay
for the printing of the booklet, then offered to split the cost with the company. Rovello
responded that the contract had been in effect for a year and a half, and Respondent did not
intend to pay for the printing of booklets at that point.40 Marczyszak also stated that the
company would not print the IUE contract booklet. According to Marczyszak and Rovello,
Rovello told Leone that the parties did not discuss the cost of printing the contract booklet
during negotiations, and that negotiations were now closed. When Leone asked whether the
company would agree at that point to pay for half the cost of printing the booklet, Rovello
reiterated that negotiations were closed. Leon then asked Marczyszak for a yes or no answer,
and Marczyszak said that the company was not willing to share the cost of printing the contract
booklet.41
III. ANALYSIS AND CONCLUSION
A. Allegations Regarding Unlawful Statements, Surveillance, and Harassment42
The complaint alleges that Respondent violated Section 8(a)(1) of the Act beginning in
the summer of 2011, when Marczyszak, Arnson, and Butler repeatedly prohibited the GMP
officers from discussing union matters on worktime in circumstances where conversation
regarding other nonwork-related topics was permissible, threatened them with discipline and
unspecified reprisals, surveilled the GMP officers and created the impression that their activities
were under surveillance, prohibited them from discussing the terms and conditions of their
employment, and harassed them with incessant questioning regarding their interactions. The

40 The tentative agreement for the IUE 2011—2014 collective-bargaining agreement had
been signed on February 15, 2011.
41 Marczyszak testified that the IUE had not filed a grievance regarding the company’s
refusal to share the costs of printing a contract booklet, and that at this point a grievance would
not be timely. However, Marczyszak stated that if the IUE filed a grievance regarding the
matter, Respondent would waive its right to assert an argument that the grievance was not
arbitrable because it was not filed in a timely manner.
42 Respondent contends that the National Labor Relations Board lacked jurisdiction to
investigate the charges in this matter, issue the complaint, and prosecute the case, in that the
Board lacks a proper quorum pursuant to the opinion of the District of Columbia Circuit in Noel
Canning v. NLRB, 705 F.3d 490 (2013), holding that the President’s recess appointments of
Board Members were invalid. The Board has held that because this issue has not been
definitively resolved given the conflicting opinions of at least three other Circuits, the Board “is
charged to fulfill its responsibilities under the Act.” See, e.g., Belgrove Post Acute Care Center,
369 NLRB No. 77, at p. 1 (2013), citing Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004);
U.S. v. Woodley, 751 F.2d 1008 (9th Cir. 1985); U.S. v. Allocco, 305 F.2d 704 (2d Cir. 1962). In
addition, the Board held after the submission of post hearing briefs in this matter that the
authority of the General Counsel to investigate unfair labor practice charges and prosecute
complaints is derived from the National Labor Relations Act itself, and not from “any power
delegated by the Board.” Bloomingdale’s, Inc., 359 NLRB No. 113 (2013).
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complaint further alleges that Respondent violated Section 8(a)(1) when Lochman threatened
employees with unspecified reprisals on March 2.
I find that the evidence establishes that Marczyszak, Arnson, and Butler unlawfully
prohibited the GMP officers from discussing union matters during worktime in situations where
conversation regarding other nonwork-related topics was permitted, threatened them with
discipline in retaliation for their union activities, and created the impression that their union
activity was under surveillance. The evidence further establishes that Arnson and Butler
threatened employees with unspecified reprisals, and that Respondent harassed the GMP
officers by its managers’ conduct. However, the evidence does not establish that Respondent
prohibited employees from discussing their terms and conditions of employment, or that
Marczyszak threatened employees with unspecified reprisals. The evidence also does not
establish that Lochman threatened employees with unspecified reprisals during the March 2
meeting. As a result, I have recommended that these allegations be dismissed.
1. Statements attributed to Marczyszak, Arnson, and Butler
It is well settled that an employer may prohibit discussions regarding union matters
“during periods when the employees are supposed to be actively working,” if the employees are
also prohibited from discussing other subjects “not associated or connected with the employees’
work tasks.” Scripps Memorial Hospital Encinitas, 347 NLRB 52 (2006), quoting Jensen
Enterprises, 339 NLRB 877, 878 (2003); see also Sam’s Club, 349 NLRB 1007, 1009 (2007).
However, if employees are permitted to discuss other matters unrelated to work during
worktime, an employer violates Section 8(a)(1) by prohibiting similar conversation regarding
union-related issues. Sam’s Club, 349 NLRB at 1009; Scripps Memorial Hospital Encinitas, 347
NLRB at 52. Generally, in order to determine whether employer communications to employees
violate Section 8(a)(1), the Board applies an “objective standard,” evaluating “whether the
remark tends to interfere with the free exercise of employee rights,” without considering “the
motivation behind the remark or its actual effect.” Scripps Memorial Hospital Encinitas, 347
NLRB at 52, quoting Miller Electric Pump & Plumbing, 334 NLRB 824 (2001).
The evidence here establishes that Marczyszak, Arnson, and Butler effectively enforced
a “no-talk” rule to preclude discussions regarding union activities, even though employees were
permitted to discuss other nonwork-related matters on worktime. I credit the testimony of
Norton, Velez, Vaast, Domeracki, and Sears that employees routinely discussed nonwork
matters on worktime, sometimes stopping their work for a few minutes, without disciplinary
repercussions, prior to the summer of 2011.43 I further credit their testimony that they interacted
with supervisors, including Marczyszak, Arnson, and Butler in this manner. Butler confirmed
that he discussed nonwork-related issues with Domeracki and Vaast during worktime, and that
they were sometimes not actively engaged in work during these conversations. Butler further
stated that he has had brief conversations with employees regarding nonwork-related issues in

43 General Counsel argues that because Norton, Hing, Velez, Vaast, Domeracki, and Sears
are currently employed by Respondent, their testimony may be considered particularly reliable,
in that it is potentially adverse to their own pecuniary interests. Covanta Bristol, Inc., 356 NLRB
No. 46 at p. 8 (2010); Flexsteel Industries, 316 NLRB 745 (1995), affd., 83 F.3d 419 (5th Cir.
1996). While I am cognizant of this general principle, I have also taken into account the union
officer positions held by some of these employees, as well as demeanor and other factors, in
making credibility resolutions. I also note that Vaast and Domeracki testified pursuant to a
Subpoena issued by General Counsel.
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the hallway, or some other area when they are not actively working, during worktime.
Marczyszak testified that he has brief nonwork-related conversations with employees upon
meeting them on the shop floor, and testified that when such discussions were confined to “a
few minutes” they were not objectionable.44 Although Arnson testified that when he saw
employees talking he asked them why they were “bothering” one another, it was apparent that
he began using this technique after Marczyszak modified his directive to writeup “union guys”
who did not appear to be working on the assumption that they were engaged in union business,
as discussed below.45
In addition, the documentary evidence submitted by Respondent does not establish that
prior to the fall of 2011 employees were consistently disciplined for talking to one another during
worktime without continuing to physically perform their work. Respondent introduced into
evidence what it described as discipline issued to employees for “loafing” dating back to
February 2008 (R.S. Exh. 25). However, none of this discipline appears to involve a situation
where employees had a brief conversation during worktime. Instead, the disciplined employees
were, according to the documents, smoking inside or outside the facility, having coffee or
making purchases in the cafeteria, reading a newspaper, or outside the plant for no apparent
reason. Although employee Howard Gombert was disciplined on August 6, 2010, for leaving his
machine and conversing with other employees, the disciplinary notice indicates that he spoke to
a number of employees, visiting the warehouse, the pattern area, and the machine shop, where
he had coffee. Similarly, although Christian Feliz was disciplined on April 13, 2011, for talking to
Jose Jimenez, it is apparent from Arnson’s description of the incident that Feliz became
belligerent and interrupted Arnson’s subsequent conversation with Hing. The objectionable
conduct in these cases therefore encompassed more than a brief conversation with another
employee. Finally, although Cavaluzzi and Hing were disciplined on August 17, 2010, for
“conducting Union business” in the pattern shop during worktime, there is no specific description
of their conduct, and the discipline is therefore not probative as to Respondent’s approach to
nonwork-related employee conversations during worktime. As a result, the documentary
evidence does not tend to establish that, prior to the fall of 2011, Respondent uniformly
disciplined employees for discussing nonwork-related issues amongst themselves or with
supervisors on worktime, even if they did not continue to actually work throughout the
conversation. Given the disciplinary records and the testimony of the employees and managers

44 Respondent argues that the managers’ nonwork-related conversations with employees
are irrelevant to a determination as to whether employees were in fact permitted to interrupt
their work while discussing nonwork-related matters on work time. However, the first of the
cases cited by Respondent to argue that an employer may enforce policies it has not itself
followed involves a presumptively valid rule regarding the distribution of written materials prior to
a representation election. Hale Nani Rehabilitation, 326 NLRB 335, 336 (1998). The various
Board members found that its enforcement against employees was not objectionable, in that it
did not create an imbalance in the union and employer’s ability to communicate during the pre-
election period, and the union had other means to communicate its message. Hale Nani
Rehabilitation, 326 NLRB 335, 336, 337 (1998). This case is therefore not relevant. In the
second case, the Board in fact found that the employer violated Section 8(a)(1) by excluding
nonemployee picketers from its property. John Ascuaga’s Nugget, 298 NLRB 524, 533 (1990).
Although the Board’s Decision was reversed by the Ninth Circuit in this respect, Sparks Nugget,
Inc. v. NLRB, 968 F.2d 991, 998 (1992), the Board Decision is controlling in this context.
45 Indeed, Arnson testified that although he saw Norton or Hing with a union contract or what
he believed to be union documents approximately three times per year, he never told them that
they were not permitted to engage in union activities on worktime until the fall of 2011.
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described previously, the evidence overall does not establish that, prior to 2011, Respondent
prohibited all nonwork-related conversations unless the employees involved continued to
physically perform work-related tasks.
The evidence further establishes that in the summer of 2011, Marczyszak specifically
instructed other managers to alter their approach to employee discussions of nonwork-related
issues during worktime, in response to the increased activity and more aggressive positions
taken by the new GMP leadership. Marczyszak admitted that after Norton was elected
president of the GMP in July 2011 the Union became more energetic and forceful, and that
resolving issues was more difficult. Marczyszak also testified that the new GMP leadership,
including Norton, appeared to spend more time investigating grievances and preparing for
grievance meetings. Marczyszak admitted that as a result, he told Arnson “whenever you see
those union guys getting together and they’re not working you write them up,” and “tell them that
I said so” (Tr. 765). Or, as Arnson described it, Marczyszak told him to give the employees a
“heads up” that if they were not working, “we’re going to assume you’re doing union business,”
and to vigilantly pursue employees’ gathering and engaging in conversation (Tr. 1096). I further
find that Marczyszak gave a similar instruction to Butler, who testified that Marczyszak directed
him during a meeting to look out for employees’ abuse of time. As discussed below, Butler
testified that as a result of Marczyszak’s directive, when he happened to see Hing and the
pattern makers together, he told them that they were supposed to be working. Butler stated he
used the phrase “union activity” during these conversations. Thus, the evidence establishes
that Respondent’s other managers confronted employees who held union office regarding their
conversations based upon Marczyszak’s instruction, which was ultimately engendered by the
more aggressive stance with respect to investigation and contract enforcement taken by Norton
and the other officers of the GMP.
Turning to the specific statements at issue, I credit Norton’s testimony that when he
visited Marczyszak’s office on July 25, 2011, Marczyszak told him, after some discussion as to
whether Norton was late coming back from lunch, that if he was seen talking to Hing or any of
the other employee GMP officers, it would be assumed that they were discussing union
business, and they would be written up. This was precisely what Marczyszak had directed
Arnson to do. Marczyszak’s testimony that he told Arnson, “tell them I said so,” indicates that
he was not reticent about having this particular approach toward the employees’ union activities
attributed to him personally. As a result, it is quite plausible that after Norton presented him with
an unfair labor practice charge (again evincing the GMP leadership’s newly aggressive
approach), he would confront Norton directly with the warning that he had already instructed his
managers to give to the “union guys.” Marczyszak’s comment to Norton thus constituted an
attempt to disparately prohibit employees from discussing union matters during worktime in
circumstances where discussion of other nonwork-related topics was allowed, in violation of
Section 8(a)(1). Dial One Hoosier Heating & Air Conditioning Co., 351 NLRB 776 fn. 3, 787
(2007); Scripps Memorial Hospital Encinitas, 347 NLRB at 52–53. In addition, Marczyszak’s
statement threatened Norton with discipline in retaliation for union activity. See Washington
Fruit & Produce Co., 343 NLRB 1215, 1252–1253 (2004) (supervisor’s statement to employees
talking amongst themselves that she “did not want them having any union meetings” in the work
area improperly assumed that union activities were being discussed and unlawfully threatened
employees with discipline); Saginaw Control & Engineering, Inc., 339 NLRB 541, 558–559
(2003) (supervisor’s statements that he had seen employee conversing about what he
“assumed was union business” and threats to transfer him or reduce his hours as a result
unlawful).
Marczyszak’s statement to Norton also created the impression that the union activities of
Norton and the other GMP officers were under surveillance by Respondent. In order to
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determine whether an employer has unlawfully created the impression of surveillance, the
Board considers whether, under the relevant circumstances, reasonable employees would
interpret the statement at issue as conveying that their union activities were under scrutiny.
Frontier Telephone of Rochester, 344 NLRB 1270, 1276 (2005), enfd., 181 Fed.Appx. 85, 180
L.R.R.M. 2896 (2d Cir. 2006). Statements indicating an intent to monitor union activity in the
future unlawfully create the impression of surveillance. Golden Stevedoring Co., 335 NLRB
410, 416 (2001). I find that Marczyszak’s warning that if he saw Norton speaking to Hing or
other employees a write-up would ensue based on the assumption that they were engaged in
union activity was unlawful this standard. Norton could reasonably conclude from Marczyszak’s
pronouncement that his interactions with other employees would be subject to heightened
managerial observation in the future, and would be presumed to involve the Union. As a result,
Marczyszak’s statement unlawfully created the impression that Norton’s union activities were
under surveillance. See P.S.K. Supermarkets, 349 NLRB 34, 35 (2007) (manager’s statement
that she “can always see somebody and who they’re talking with” created impression of
surveillance); Saginaw Control & Engineering, Inc., 339 NLRB at 558–559 (supervisor created
the impression of surveillance by telling employee that “since the election” he had seen the
employee speaking to other employees and “assumed” they were discussing “union business
on company time”).
The evidence establishes that Arnson, pursuant to Marczyszak’s instructions, violated
Section 8(a)(1) in a similar manner. Arnson admitted that he told Norton that as GMP President
he had “a big target on [his] back” if he intended to “start things” or was “stirring things up” (Tr.
1093–1094). As a result, I credit Norton’s testimony that on July 5, 2011, Arnson told him that if
he was seen talking to Hing or any of the other union representatives, he would be written up
based upon the assumption that he was engaged in union activity, because Marczyszak would
“come gunning for” him. The evidence also establishes that on multiple occasions in September
and October 2011, Arnson told Norton and Hing that if they were seen talking to one another or
to the other pattern shop employees, management would assume that “they were talking union
business,” and they would be written up.46 I credit Norton and Hing’s testimony that, as Arnson
also admitted, he repeatedly told them that pursuant to Marczyszak’s directive he was to
assume that they were engaged in union activity if he saw them talking to one another or to
other employees on worktime, and write them up. By making these statements, Arnson
prohibited discussions of union matters during worktime when other nonwork-related
conversations were permitted, threatened employees with discipline, and created the
impression of surveillance.47

46 I find any discrepancies between Norton’s affidavit and his testimony, or between Norton’s
testimony and that of Hing, immaterial in light of Arnson’s admissions regarding these
statements.
47 Toma Metals, 342 NLRB 787 (2004), cited by Respondent to argue that Arnson’s
statement was not coercive because of his alleged personal relationship with Norton, is
inapposite. That case involved an interrogation, not a threat or a statement creating the
impression of surveillance, and therefore required consideration of the relationship between the
supervisory questioner and the employee. Toma Metals, 342 NLRB at 788–789. In addition,
the low-level supervisor was related by marriage to the employee he questioned, and the two
were personal friends. Toma Metals, 342 NLRB at 789. Here, Norton participated in certain
sporting events organized by Arnson, but there is no evidence of any family relationship or
particular friendship. In Clinton Electronics Corp., 332 NLRB 479, 479–480, 488–489 (2000), by
contrast, the low-level supervisor was a “longstanding” friend of the employee she questioned,
and the Board nevertheless found an unlawful interrogation. Although the Seventh Circuit
Continued
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I further credit Hing’s testimony that Arnson interrupted his conversations with Norton
after Norton became GMP president, asking them what was going on and telling them, “I hope
you’re not talking about Union business,” and “You know what Ed would do if he seen you
talking.” These remarks are fully consistent with Arnson’s own description of his interactions
with Norton, Hing, and the pattern shop employees. I find that they constitute threats of
discipline and unspecified reprisals in retaliation for Norton and Hing’s union activities,
particularly given the reference to “what Ed would do” and Arnson’s own previous remarks.
In addition, I credit Norton and Hing’s testimony that Arnson continued to interrupt them
and ask them what was going on, what they were doing, and why they were in a particular area
of the facility, after he stopped explicitly referring to union activity and potential discipline.
Arnson admitted that he approached the employees in this manner after being told “in the
office…not to say that, not to use those words anymore” (Tr. 1099). Although managers are
obviously entitled to ensure that the work they are responsible for is being performed by the
employees they supervise, Arnson’s statements in this context were merely an alternative
iteration of his previous attempts to prevent Norton, Hing, and other employees from discussing
union issues. Finally, I credit Hing’s testimony, again corroborated by Arnson, that Arnson
admonished Hing to take a route to the locker room bathroom that did not go through the
pattern shop, so that, in Arnson’s words, Hing would not be “tempted to stop” and talk to the
other GMP officers in the area (Tr. 1103–1104). I find that this constituted another attempt on
Arnson’s part to prevent the employee GMP officers from discussing union issues in
circumstances where talk about other nonwork-related matters was permissible. I therefore
conclude that these more subtle attempts to prevent discussion of union matters on Arnson’s
part likewise constituted disparate enforcement of a “no-talk” rule and created the impression of
surveillance of the employees’ union activities.
I find that Butler made similar statements to Norton and Hing, which violated Section
8(a)(1) of the Act in the same manner. I credit Norton’s testimony that in the fall of 2011, Butler
repeatedly said that if he discovered Norton or Hing talking to the pattern shop employees, he
would assume that they were engaged in union activity and write them up. I further credit Hing’s
testimony that Butler interrupted him and Cavaluzzi (then a GMP steward), and admonished
them against talking about union business. I find that Butler was not a credible witness with
respect to this issue, engaging in circumlocution even with Respondent’s counsel on direct
examination. I do not credit his testimony that he could not recall exactly how he used the term
“union activity” when telling Hing and the pattern makers that they were supposed to confine
their activities to work during worktime, and could not recall precisely what he said. In fact,
Butler’s admission that Norton had “always” given him “good reasons to be in the Pattern Shop”
when questioned (Tr. 1030), and the undisputed fact that Norton needs to interact with the
pattern makers in order for the work in that department to proceed, further establish that his
comments were motivated by a desire to prevent union activity.
In addition, I credit Hing’s testimony that Butler continued to interrupt his conversations
with Norton and the pattern makers by asking them what they were doing in the same manner
as did Arnson. As with Arnson, I find that this conduct of Butler’s continued, with more
politesse, the managers’ previous efforts to prevent the GMP officers from discussing union
matters on worktime. Because the evidence establishes that Respondent permitted
_________________________
reversed the Board on the issue, it is the Board Decision which has precedential import here.
NLRB v. Clinton Electronics Corp., 284 F.3d 731 (2002).
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conversation regarding other nonwork-related topics on worktime as described above, Butler’s
remarks and conduct constituted another unlawful disparate application of a “no-talk” rule.
Butler’s comments to Norton also constituted a threat of discipline in retaliation for union activity,
and statements creating the impression of surveillance. I also find, for the reasons discussed
above, that Butler’s statement to Hing, “I hope you’re not talking about union business,” created
the impression of surveillance and, in the context of Butler and Arnson’s prior explicit threats of
discipline, threatened Hing with unspecified reprisals.
For all of the foregoing reasons, the evidence establishes that Respondent violated
Section 8(a)(1) of the Act when Marczyszak, Arnson, and Butler: (i) prohibited employees from
discussing union matters during worktime in circumstances where discussion of other non-work-
related topics was permitted; (ii) threatened employees with discipline in retaliation for their
union activities; and (iii) created the impression that the employees’ union activities were under
surveillance. The evidence further establishes that Arnson and Butler threatened employees
with unspecified reprisals. The evidence does not establish, however, that Marczyszak, Arnson,
and Butler prohibited employees from discussing their terms and conditions of employment.
Marczyszak, Arnson, and Butler’s statements to Norton, Hing, and the pattern shop employees
were focused solely on “union business.” There is no evidence that these employees were
discussing terms and conditions of employment at any of the times that they were admonished
by management during July, September, and October 2011, as alleged in the complaint. I
therefore decline on the pleadings and record to make a finding that Respondent prohibited
employees from discussing terms and conditions of employment. As a result, I shall
recommend dismissal of paragraphs 9(e), 10(b), and 11(a) of the complaint. I further find that
the evidence does not establish that Marczyszak threatened employees with unspecified
reprisals, as opposed to a writeup, and therefore recommend that paragraph 9(a) be dismissed
as well.
2. Alleged surveillance and harassment by Marczyszak, Arnson, and Butler
The evidence establishes that Marcyzszak, Arnson, and Butler’s repeated threats,
statements creating the impression of surveillance, and disparate application of a “no-talk” rule
constituted harassment which violated Section 8(a)(1) and (3) of the Act. I find that their
insistent chiding of Norton, Hing, and the pattern shop employees regarding talking “union
business” when discussion of other topics on worktime was permitted rose to the level of
harassment. As discussed above, Arnson and Butler continued this overall pattern of conduct,
albeit without specific references to union business or union activity, in asking these employees
what was going on, what they were doing, or what they were talking about for a period of time
after their initial, explicit references to union activity. There is no evidence that Respondent’s
managers treated employees who were not union officers in a similar manner; in fact, the
evidence establishes that brief nonwork-related conversations on worktime were permitted. I
therefore find that by doing so, Respondent discriminatorily harassed the GMP officers, in
violation of Section 8(a)(1) and (3) of the Act. See Laser Tool, Inc., 320 NLRB 105, 109–110
(1995).
I do not find, however, that Marczyszak, Arnson, and Butler engaged in surveillance by
repeatedly admonishing Norton, Hing and the pattern shop employees against discussing union
business on worktime. There is no evidence that, in the fall of 2011, Respondent’s managers
altered their activities in order to watch the employees more closely or stationed themselves in
specific areas to observe the employees for any length of time. In particular, the evidence
establishes that Marczyszak has performed “walk-throughs” of the facility, sometimes
accompanied by Arnson, at different points during the day in the same fashion since the
inception of his tenure as plant manager. There is no evidence that Marczyszak, Arnson, or
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Butler changed their routines in the fall of 2011 in order to observe Norton, Hing, or the pattern
shop employees more closely. Compare New Era Cap Co., 336 NLRB 526, 533–534 (2001)
(supervisor altered conduct to stand close to employee who supported union affiliation “several
times a day” when he had previously visited employee’s work area once per week, and
traversed certain work areas on regular plant walk-throughs “more often” than in the past);
Laser Tool, Inc., 320 NLRB at 111–112 (owner hid behind a cabinet near employees’ work
stations in an apparent attempt to listen to their conversation, and provided no alternative
explanation for his behavior at trial). Marczyszak, Arnson, and Butler, as managers, have a
responsibility to oversee the work performed in the facility, and to ensure that the employees are
productive. In order to fulfill those functions, they must move about the plant to maintain an
adequate overview of the work being performed and any problems which arise. As a result,
although their repeated, unprecedented questioning and chiding of the GMP officers regarding
conducting union business on worktime was unlawful, the evidence does not establish that they
engaged in specific surveillance of the GMP officers. I therefore find that the allegations that
Marczyszak, Arnson, and Butler engaged in surveillance have not been substantiated, and will
recommend that paragraphs 9(c), 10(d), and 11(e) of the complaint be dismissed.
3. Statements attributed to Lochman
Paragraph 13 of the complaint alleges that Lochman threatened employees with
unspecified reprisals in retaliation for their union activities at the March 2 labor management
meeting. I find that the evidence overall does not substantiate this allegation. While the
account of the March 2 meeting provided by General Counsel’s witnesses was sparse and
somewhat contradictory, Norton and Hing eventually testified that Lochman said that if the GMP
continued the pace of its activities, particularly with respect to the filing of grievances, “they were
going to come down hard on us.” However, Norton’s testimony regarding this meeting was
disjointed, and he required significant prompting by counsel in order to provide any context for
Lochman’s alleged threat of reprisal (Tr. 116–120). Hing’s account of Lochman’s statements
varied. Hing initially testified that Lochman said that if the GMP continued to press grievances,
“he was going to come down on us,” but then on cross-examination testified that Lochman told
the group that Hubbell “had some option or their ideas or something like that…they’re going to
come down on your guys” (Tr. 303, 322). In addition, although Hing discussed the March 2
meeting in his affidavit, he did not mention Lochman’s purported threat to “come down on” the
GMP or its members at that juncture, only 3 months after the March 2 meeting itself (Tr. 321).
Hing insisted at several points in his testimony that Norton did not speak during the March 2
meeting, contrary to Norton’s account (Tr. 119, 313–314, 324). Hing also contradicted Norton’s
testimony that Lochman’s threat of reprisal “ended the meeting” (Tr. 117, 323–324). Finally, I
note that Don Seal, the GMP representative who arranged for the meeting with Lochman and
served as the Union’s chief spokesperson, did not testify at the hearing to corroborate Norton
and Hing, although he remains employed by the GMP.48 Overall, the lacunae in the testimony
of Norton and Hing, the contradictions between their accounts, and Seal’s failure to testify, cast
doubt upon the reliability of the General Counsel’s evidence regarding Lochman’s statements
during the March 2 meeting.
The overall context and purpose of the March 2 meeting also militates against a finding
that Lochman told the participants that Respondent would “come down hard” on the GMP if the

48 While I do not find it appropriate to draw an adverse inference based upon Seal’s failure
to testify and corroborate Norton and Hing’s account of the March 2 meeting, I find his failure to
do so significant, and have considered it in making my findings.
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Union continued filing grievances or engaging in other activities. The evidence establishes that
the March 2 meeting was arranged between Lochman and Seal in order to address what they
both perceived as a deterioration in the overall relationship between Respondent and the GMP.
Seal and Lochman, as well as GMP representative Hector Sanchez, spoke at the meeting
regarding the need to repair the collective-bargaining relationship and work together
constructively, and expressed their mutual view that the bargaining unit employees enjoyed
excellent wages and benefits. The evidence further establishes that immediately after
Lochman’s remarks the parties were scheduled to discuss a number of outstanding GMP
grievances, with a view toward resolving them. I find it improbable that in such a context
Lochman would counterproductively threaten the Union with reprisals as alleged. I find it
particularly unlikely that Lochman would, as Norton testified, end his remarks in such a manner
if the parties were going to immediately proceed to attempt to resolve pending grievances. It is
further undisputed that Seal believed that the meeting went well, felt that everyone had the
opportunity to present their perspectives, and told Norton that the GMP should focus on moving
forward to establish a productive working relationship (Tr. 243–244). In fact, Norton testified
that Seal and Lochman both appeared “sincere in their efforts to…move forward in a positive
way” (Tr. 244). Again, Seal did not testify at the hearing. In the absence of a concrete
explanation on his part, I find it difficult to believe that he would express such an opinion had
Lochman threatened the GMP with reprisals for filing additional grievances.
In making these assessments, I acknowledge the likelihood of Lochman’s frustration with
the more aggressive activity of the GMP’s new leadership, and with the GMP’s activities in
pursuing grievances and unfair labor practice charges that Lochman admitted were discussed
during the meeting. I further find it entirely possible, given Lochman’s agitation during his cross-
examination, that he became heated during the meeting, and expressed his dismay at the
change in the GMP’s relationship with Respondent in a forceful manner.49 However, the issue
is not whether Lochman became discernibly angry, it is whether he expressed himself by telling
the GMP representatives that if they continued to file grievances, Respondent would “come
down on” the Union. I find that the countervailing evidentiary and pragmatic considerations
discussed above ultimately militate convincingly against such a conclusion.
For all of the foregoing reasons, I credit Lochman’s testimony, as well as the
corroborating testimony of Marczyszak and Rovello, that he did not threaten to “come down on”
the GMP during the March 2 labor management meeting. I therefore recommend that
paragraph 13 of the complaint be dismissed.
B. Allegations Regarding Retaliatory Discipline, More Onerous Working Conditions, and
Monitoring
1. General principles
Under Section 8(a)(3) of the Act, an employer may not discriminate with regard to the
hire, tenure, or any term or condition of employment in order to encourage or discourage
membership in a labor organization. In order to determine whether an adverse employment
action violated the Act in this manner, the Board applies the analysis articulated in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied, 455 U.S. 989 (1982),
approved in NLRB v. Transportation Mgmt. Corp., 462 U.S. 393 (1983). To establish unlawful

49 I note that Norton also became upset while testifying regarding the March 2 meeting (Tr.
116–117).
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discipline under Wright Line, the General Counsel must first prove, by a preponderance of the
evidence, that the employee’s union sympathies or activities were a substantial or motivating
factor in the employer’s decision to take action against them. Manno Electric, Inc., 321 NLRB
278, 280 (1996). The General Counsel makes a showing of discriminatory motivation by proving
the employee’s union support or activity, employer knowledge of that activity, and animus
against the employee’s protected conduct. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999).
Proof of an employer's motive can be based upon direct evidence or can be inferred from
circumstantial evidence, based on the record as a whole. Ronin Shipbuilding, 330 NLRB 464
(2000); Robert Orr/Sysco Food Services, 343 NLRB 1183 (2004).
If the General Counsel is successful, the burden of persuasion then shifts to the
employer to show that it would have taken the same action even in the absence of the
employee’s union support or activities. Wright Line, 251 at 1089; Septix Waste, Inc., 346 NLRB
494, 496 (2006); Williamette Industries, 341 NLRB 560, 563 (2004). Once the General Counsel
has met its initial burden under Wright Line, an employer does not satisfy its burden merely by
stating a legitimate reason for the action taken, but instead must persuade by a preponderance
of the credible evidence that it would have taken the same action in the absence of the
protected conduct. T&J Trucking Co., 316 NLRB 771 (1995); Manno Electric, Inc., 321 NLRB at
280 fn. 12 (1996).
2. Disparate application of general rule 9 prohibiting loafing or abuse of time and the
General Counsel’s prima facie case
I find that General Counsel has established a prima facie case that the discipline issued
to Sears, Velez, and the GMP officers in February, April, and May 2012 was unlawfully
motivated. The evidence amply establishes the alleged discriminatees’ union activities and
Respondent’s knowledge. All of the employees disciplined, except Velez, were union officers,
and some were engaged in union or protected activity during the incidents for which they were
disciplined, such as Sears and Hing on April 12. Norton signed the January 3 letter to upper
management regarding the Cessa incident complaining, on behalf of both the GMP and the IUE,
about Marczyszak’s behavior. On January 31, Region 34 served on Respondent the first
complaint in this matter, alleging violations of Sections 8(a)(1), (3), and (5) with respect to the
GMP. Thus, Respondent was well aware of the union positions held by Sears and the GMP
officers, and of their activities on behalf of the respective Unions.50
There is also sufficient evidence of animus to support a prima facie case. For example,
the timing of the discipline supports an inference that it was unlawfully motivated. It is well
settled that an adverse employment action against employees within days of learning of union
activity “strongly supports an inference of animus and discriminatory motivation.” Acme Bus
Corp., 357 NLRB No. 82 at p. 26 (2011); see also Manorcare Health Services—Easton, 356
NLRB No. 39 at p. 3, 25 (2010), enfd., 661 F.3d 1139 (D.C. Cir. 2011) (discipline of employee
“just days” after her first public support for the union indicative of unlawful motivation). Here, the
“loafing” discipline imposed upon the union officers began within days of Region 34’s issuing the
January 31 complaint, and within 2 weeks Sears and the majority of the GMP officers had
received initial counselings. Animus is also evident in Marczyszak, Arnson, and Butler’s
disparate enforcement of Respondent’s rules regarding nonwork-related conversations on

50 Although the evidence does not establish that Sears’ signature appears on the January 3
letter, the letter was signed by the President of the IUE, and it is undisputed that Respondent
was aware that Sears was an IUE steward.
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worktime, threats of discipline and unspecified reprisals, and creation of the impression of
surveillance in fall 2011, all of which violated Section 8(a)(1). See Austal USA, LLC, 356 NLRB
No. 65 at p. 1–2 (2010) (Section 8(a)(1) violations constitute evidence of animus); Bally’s
Atlantic City, 355 NLRB No. 218 at p. 9 (2010), enfd., 646 F.3d 929 (D.C.Cir. 2011).
Furthermore, Respondent’s conduct in this regard was sufficiently persistent to rise to the level
of harassment in violation of Sections 8(a)(1) and (3). As discussed above, it is evident from the
record that Marczyszak directed Arnson and Butler to target the union officers in response to the
GMP’s more aggressive approach to contract enforcement after Norton became president.
In addition, as discussed above in Section III(A)(1), the evidence does not establish that
Respondent had a consistent practice of disciplining employees for speaking to one another
during worktime, whether or not rule 9 was explicitly cited. The documentary evidence which
Respondent contends establishes an existing practice of discipline for abuse of worktime
primarily involves activities outside the plant, such as smoking, or conduct inside the plant other
than talking, such as eating or drinking, using a cell phone to talk or for some other purpose, or
reading. Rovello testified that she could not recall any additional discipline issued to employees
solely for speaking with one another. While Hing and Cavaluzzi received discipline on August
17, 2010, for “conducting union business on work time,” there is no information as to what they
were actually doing. The two disciplines for talking on worktime, issued to Gombert on August
6, 2010, and Feliz on April 13, 2011, both involve the distinguishing circumstances discussed
previously.51 By contrast, Arnson testified that he observed Norton or Hing with a copy of the
GMP contract or union documents during worktime about three times per year, but there
apparently was no discipline issued as a result prior to 2012. Therefore, the documentary
evidence overall does not establish a consistent practice of issuing discipline to employees
simply for conversing with one another, regardless of a citation to general rule 9. This is
consistent with the testimony of the employee GMP officers and Sears that they had never
heard of two employees being disciplined for such conversations.52
Finally, the evidence establishes that Respondent altered its disciplinary practice with
respect to general rule 9 prohibiting loafing in response to the increased activities of the GMP, in
a manner indicative of animus against union activity. In this regard, Rovello’s testimony that she
began explicitly citing to rule 9 in 2010 is contradicted by the documentary evidence
Respondent introduced regarding discipline issued for loafing since 2008 (R.S. Exhs. 25, 28).
These documents establish that prior to February 3, Respondent specifically cited rule 9 or
“loafing” in only three disciplines issued in 2008—one to Cavaluzzi for reading the newspaper
during worktime, one to employee Feliz for washing up 20 minutes early, and one to employee
Genao for talking on his cell phone during worktime. There is no pattern of citing to Rule 9 or
“loafing” which begins in 2010 or 2011, although Respondent issued discipline for engaging in
other activities during worktime during those years. In addition, Rovello testified that she began
using Rule 9 in 2010 in order to include all types of failing to work during worktime in one
sequence of progressive discipline, after Hing argued that discipline issued to Cavaluzzi for
smoking inside and outside the facility should be treated separately for progressive disciplinary

51 In Gombert’s case, the discipline indicates that he left his machine to roam the plant
chatting with employees during worktime, covering the warehouse, pattern area, and machine
shop, where he had coffee. The discipline issued to Feliz indicates that he confronted Arnson
after being directed to return to his work area.
52 Sears testified that, in his experience as IUE steward, none of employees in the IUE
bargaining unit who speak primarily Spanish had been disciplined for brief conversations,
regardless of whether they were actually working at the time.
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purposes. However, the record contains no evidence that Cavaluzzi was disciplined for
smoking anywhere at any time after 2008.53
As a result, I find that Rovello’s testimony regarding the timing and motivation for the
change in Respondent’s disciplinary practice regarding citations to general rule 9 is not credible.
It is more likely that, as Lochman admitted during his testimony, he directed Rovello to explicitly
refer to “loafing” or general rule 9 in disciplinary documentation, “once things got a little bit more
confrontational, where we saw the increase in grievances” on the part of the Unions (Tr. 1159–
1160). It was also during this period that Marczyszak directed the other supervisors to discipline
union officers found conversing amongst themselves or with other employees on the
assumption that they were engaged in “union business.” Indeed, the two strategies were
complementary—while Marczyszak’s instruction ensured that union officers would be disciplined
more frequently than employees not holding union office or engaged in union activity,
Lochman’s idea to place all such “infractions” within the same sequence of progressive
discipline would result in the imposition of more serious penalties. As a result, the evidence
establishes that Respondent deliberately changed its practice in terms of citing general rule 9 in
response to the increased activities of the new GMP leadership.
For all of the foregoing reasons, I find that General Counsel has established a prima
facie case that the discipline issued to Sears and the GMP officers in February, April, and May
was imposed in retaliation for their union support and activities. I also find that General Counsel
has also established a prima facie case that Respondent selectively applied general rule 9
prohibiting “loafing” to Sears and the GMP officers in the context of the allegedly unlawful
discipline. Additional evidence pertaining to Respondent’s asserted legitimate,
nondiscriminatory reasons for the individual disciplinary actions will be addressed below.
Ultimately, I have found that Respondent did not provide evidence sufficient to substantiate its
claims that the various disciplinary actions were motivated by legitimate considerations. This
finding further supports the overall conclusion that Respondent disparately applied general rule
9 to prohibit union activity, or discussion amongst or with union officers that Respondent’s
managers believed at the time involved union matters, as alleged in paragraph 16 of the
complaint.
3. The February 3 counseling issued to Sears, and Rovello’s alleged March 7 threat of
retaliation
Respondent asserts that it issued a counseling to Sears on February 3 for “loafing” in
violation of general rule 9, which consisted of “having a discussion with a pattern shop
employee” during worktime. The evidence establishes that on February 3, during worktime,
Marczyszak discovered Sears leaning on a stool talking to Cavaluzzi at Cavaluzzi’s work
bench.54 I find that the evidence overall establishes that Respondent issued the February 3
counseling to Sears in retaliation for his union position and activity, and not for any legitimate,
nondiscirminatory reason.
The circumstances surrounding the February 3 incident and the counseling support the
conclusion that the discipline issued to Sears was part of the newly engineered effort to use

53 The evidence establishes that Cavaluzzi was repeatedly disciplined for absenteeism,
which was subject to a separate sequence of progressive discipline.
54 Sears was responding to Cavaluzzi’s question about whether he would be paid for his
time while attending an upcoming GMP arbitration hearing.
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general rule 9 to prevent union activity during periods when other nonwork-related conversation
was permitted. For example, when Marczyszak, saw Sears and Cavaluzzi talking, he did not
simply approach them immediately, but walked the entire periphery of the area, watching Sears
and Cavaluzzi, prior to confronting them. Marczyszak implausibly denied during his testimony
that this was a longer and more roundabout way to reach the pattern shop (Tr. 811). I find
Marczyszak’s contention that he did so in order to avoid an unpleasant confrontation with Sears
similarly incredible given his previously outspoken opposition toward union officers’
conversations during worktime. In particular, as discussed above, Marczyszak directed Arnson
to inform the union officers that he had personally ordered the managers to issue writeups on
the assumption that the union officers were conducting union business if they were discovered
conversing on worktime. In addition, both Marczyszak and Sears testified that Sears avoided
interacting with Marczyszak, and often left an area if Marczyszak approached him (Tr. 527,
755).
Instead, I find that Marczyszak was purposefully extending his path to the pattern shop
in an attempt to catch Sears and Cavaluzzi talking for a sufficiently lengthy period to warrant
discipline if their conversation was not work-related. Marczyszak testified that any manager
could approach an employee seen conversing with another to ask what the employees were
doing, as opposed to issuing discipline:
…unless it’s something they’ve seen taking place that’s egregious. If I walk [up]
to people, and they’re briefly talking, and I ask them what they’re working [on]
and they break up, then they’ve gone back to work. If on the other hand
someone is taking more than just a few minutes and they don’t go back to work,
then obviously they’re loafing and abusing time. [Tr. 797–798]
According to Marczyszak’s testimony, therefore, if an employee who might not be working
walked away after being approached, they would have “gone back to work,” the problem would
be resolved, and no discipline would be necessary. Marczyszak did not pursue this course,
however, and his explanations for foregoing it are not credible. Instead, the sequence of events
here indicates that Marczyszak was interested in establishing the latter, and refrained from
speaking directly to Cavaluzzi and Sears in the hope that they would continue their conversation
for a length of time sufficient to warrant disciplinary action. As a result, I find that his actions
after discovering Sears in conversation with Cavaluzzi were motivated by a desire to impose
discipline.
Regardless of Marczyszak’s efforts, however, the evidence ultimately does not establish
that Sears ran afoul of Marczyszak’s conception of “loafing and abusing time.” Marczyszak
testified, as described above, that as far as he was concerned, “talking more than just a few
minutes” without working constituted “loafing or abuse of time” in violation of general rule 9, but
exchanging pleasantries with a coworker or manager for a few minutes was permissible (Tr.
700-701, 797-798). Sears testified that his exchange with Cavaluzzi lasted for about a minute
and a half, and that seems a plausible estimate given that the entire interaction consisted of
Cavaluzzi’s asking him whether he would be paid for his time attending a GMP arbitration, and
Sears’ response that Ray Dalton had not been paid for his time at an IUE arbitration. However,
even if Marczyszak’s traversal of the periphery of the area prior to confronting Sears took 3 to 4
minutes, as he claims, Sears and Cavaluzzi would have remained within the bounds of
acceptable conversation during worktime given Marczyszak’s definition. Furthermore, given the
subtlety of Marczyszak’s distinction between prohibited “loafing” and permissibly brief nonwork-
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related conversation, it is odd that the counseling does not specify the amount of time that
Marczyszak observed Sears and Cavaluzzi speaking to one another.55 This is particularly the
case given the fact that Marczyszak went out of his way for the sole purpose of observing them
for, according to his testimony, several minutes. The failure to determine exactly how long
Sears was speaking with Cavaluzzi indicates that Marczyszak was simply interested in
disciplining union officers engaged in conversation, regardless of whether their conduct rose to
the level of “abusing time.”56 See Valmont Industries, 328 NLRB 309, 314 (1999), enf. denied in
relevant part, 244 F.3d 454 (5th Cir. 2001) (manager’s “absence of any precision regarding the
length” of employee’s allegedly prohibited conversation evidence of an inadequate investigation,
and indicative of pretext).
Respondent notes that Cavaluzzi was not disciplined as a result of this incident,
because, according to Marczyszak, Cavaluzzi appeared to be working during the conversation
with Sears. Respondent argues that Marczyszak’s declining to discipline Cavaluzzi indicates
that the counseling issued to Sears had a legitimate, nondiscriminatory purpose, and that
general rule 9 prohibiting loafing and abuse of time was not applied in a disparate manner. This
argument, however, ignores the testimony of Lochman, Marczyszak, and Rovello regarding the
rationale for Respondent’s changes in disciplinary practices, which strongly indicates that they
were engendered by the GMP’s increased activities in 2011. In addition, it is well settled that an
employer’s failure to impose adverse consequences upon every individual involved in union
activity does not preclude a finding that the actions it did take were unlawfully motivated. See,
e.g., Alstyle Apparel, 351 NLRB 1287, 1287-1288,1301 (2007); Volair Contractors, Inc., 341
NLRB 673, 676-677 fn. 17 (2004).
For all of the foregoing reasons, and for the reasons discussed in Section III(B)(2),
above, the evidence overall establishes that Respondent issued the February 3 counseling to
Sears in retaliation for his union activity, in violation of Section 8(a)(3) of the Act, as alleged in
paragraph 17 of the complaint.
I further find that Respondent violated Section 8(a)(1) of the Act when Rovello
threatened Sears with discipline in her March 7 letter, based upon his conduct at the step 2
meeting regarding his February 3 discipline. Sears testified that at the step 2 meeting he told
Rovello while she was questioning him regarding the events at issue, “How many fucking times
do I have to tell you that’s not what happened,” whereas Rovello contended that Sears said to
her, “I want to know what you fucking do all day.” Even if Rovello’s account of Sears’ statement
is correct, it would not be sufficient to remove Sears’ activity during a grievance meeting from
the Act’s protection under the four factor test articulated in Atlantic Steel Co., 245 NLRB 814
(1979). Sears’ outburst took place in a conference room with only Rovello, Swanhall, Sears,
and IUE steward Herman Barnes present, so that it did not undermine managerial authority in
front of other employees or disrupt work processes. Datwyler Rubber & Plastics, 351 NLRB

55 Foote prepared the written counseling based upon Marczyszak’s account of the incident.
56 Respondent also argues that Sears’ conduct violated Art. 27(A) of the IUE contract, which
states that IUE members will not “carry on union activities during working hours on the premises
of the Employer.” I decline to make such a finding or to find a waiver applicable to Sears’
conduct based upon this language, as the evidence in fact indicates that union-related
conversations during worktime were permitted prior to fall 2011, and are ostensibly still
permitted, so long as the employees are working. See also Danzansky-Goldberg Memorial
Chapels, 264 NLRB 840, 842–843 (1982); Marco Polo Resort Motel, 242 NLRB 1288, 1290
(1979), enfd., 617 F.2d 293 (5th Cir. May 07, 1980).
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669, 670 (2007). The subject matter of the discussion involved a grievance challenging Sears’
discipline, clearly militating in favor of protection. The nature of the outburst—in particular the
use of the word “fucking”—does not warrant a finding that Sears’ activity was unprotected. See
Plaza Auto Center, 355 NLRB No. 85 at 2-5 (2010), remanded, 664 F.3d 286 (9th Cir. 2011);
Tampa Tribune, 351 NLRB at 1324-1325(2007), enf. denied, 560 F.3d 181 (4th Cir. 2009);
Alcoa, Inc., 352 NLRB 1222, 1225–1226 (2008). Finally, Sears’ outburst was provoked by the
February 3 counseling itself, which Respondent issued for unlawful reasons. Network
Dynamics Cabling, Inc., 351 NLRB 1423, 1427–1429 (2007). As a result, I find that Sears’
statements did not lose the Act’s protection under the Atlantic Steel analysis, and that Rovello’s
March 7 threat to discipline him violated Section 8(a)(1) of the Act, as alleged in paragraph 14 of
the complaint.
4. The counselings issued to Norton, Domeracki, Cavaluzzi, and Vaast on February 10 and
13
Respondent contends that it issued these counselings for “loafing” in violation of general
rule 9 because Rovello observed the GMP officers conducting union business on worktime on
February 8. Norton, Domeracki, and Vaast maintained that they were in fact discussing the
repair of a pattern. I find that the evidence overall establishes that these counselings were
issued in retaliation for the GMP officers’ union activity, and that Respondent’s asserted reason
for the discipline was pretextual.
The evidence establishes that the counselings based upon the February 8 incident, like
the February 3 counseling issued to Sears, evinced Respondent’s new practice of disciplining
union officers found engaging in conversation under the rubric of “loafing” or violating general
rule 9. In addition, however, Rovello’s actions in connection with the incident itself and the
disciplinary process, and the account provided during her testimony, were fundamentally
problematic. For example, Rovello initially claimed that she observed the four GMP officers “in
this group meeting for a while” before actually speaking to them, but later testified that she took
only 20-25 steps from the time she first saw them until the confrontation (Tr. 867, 873). As with
the February 3 counseling issued to Sears, there is no mention in the counselings prepared by
Rovello of the amount of time that the GMP officers were allegedly engaged in nonwork-related
conversation on February 8. In addition, although Rovello initially testified that she saw a GMP
contract booklet in Cavaluzzi’s drawer and that Norton closed a manila folder as she
approached, she eventually admitted that she did not in fact know whether the book she saw
was the GMP contract booklet (Tr. 866–867, 970–971).57 Indeed, none of the counselings
Rovello prepared regarding this incident mention the presence of the GMP contract booklet—
presumably an important piece of evidence that the GMP officers were not working, but were
engaged in union activity at the time she saw them. The omission of this detail is particularly
striking given Butler’s testimony that Norton needs to visit the pattern shop and speak to its
employees on a regular basis to perform his job, and that Norton had always given Butler
legitimate explanations for being there when questioned. All of this evidence strongly suggests
that Rovello simply assumed based upon the individuals involved—at the time all GMP
officers—that they were “having a meeting” regarding union business, and issued counseling to

57 The evidence also establishes that Norton kept job-related paperwork in the manila folder,
as well as greeting cards for different life events which other employees signed. However,
Rovello provided no explanation as to how she arrived at the conclusion that Norton’s shutting
the folder was related to union business, as opposed to work-related matters.
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them as a result. Indeed, this is precisely the course of action that Marczyszak had ordered
previously.
Certain of Rovello’s testimony regarding the disciplinary process and grievance
procedure with respect to the February 10 and 13 counselings was similarly unreliable. For
example, although Rovello testified that she did not speak to Lochman before issuing the
February 10 counseling to Norton, Lochman testified that he “signed off on every counseling” at
issue in this matter, including Norton’s, and that he would be “very surprised” if Rovello issued a
counseling without informing him first (Tr. 877–878, 947, 1172–1174). Rovello also contended
that the GMP officers did not assert that they were working on a pattern when she approached
them on February 8 until the step 3 grievance meeting sometime after March 30, when in fact
the union asserted this defense in its grievance filed on or before February 15 (Tr. 891, 948–
951). Rovello’s account of the disciplinary and grievance process was therefore contradicted by
Lochman’s testimony and the documentary evidence, which militates in favor of a conclusion
that Respondent’s asserted legitimate reason Respondent had for the February 10 and 13
counselings is in fact pretextual.
For all of the foregoing reasons, I find that Respondent has not established by a
preponderance of the evidence that the counselings to Norton, Domeracki, Cavaluzzi, and
Vaast based upon the February 8 incident were issued for legitimate, nondiscriminatory
reasons. I therefore find that Respondent issued these counselings in retaliation for the
employees’ union activities in violation of Sections 8(a)(1) and (3) of the Act, as alleged in
paragraphs 18 and 19 of the complaint.
5. The verbal warning issued to Sears and counseling issued to Hing on April 12
The evidence establishes that the April 12 discipline issued to Sears and Hing also
involved Respondent’s changed practice of treating brief conversations involving union matters
as “loafing” in violation of general rule 9. The evidence establishes that on April 12, Sears saw
Hing in the old machine shop and noticed a copy of the GMP contract on Hing’s forklift. Sears
asked to borrow the contract to review the bereavement pay provision, and when it was not
open to the page containing the bereavement pay language, stuck it in his back pocket and left.
Hing may or may not have spoken during the interaction, but both Sears and Hing testified that
the entire exchange lasted a minute or less.
The conduct of Butler, who witnessed this incident, was similar to that of Marczyszak
during the February 3 incident involving Sears. Butler testified that he was on his way to the
pattern shop when he saw Sears and Hing talking, and heard Sears say, “excused absences.”
Instead of directly approaching Sears and Hing to determine what was going on, Butler testified
that he observed them for “more than a minute,” and then proceeded to look for their
supervisors. Sears and Hing’s testimony regarding the length of the conversation, somewhat
shorter than Butler’s estimate, is the more plausible given that Hing was operating the forklift at
the time in an area containing machinery which creates a noise level of 85 decibels, precluding
a protracted discussion. However, even if Butler were credited regarding the length of Sears
and Hing’s conversation, according to Marczyszak’s testimony, “more than a minute” would be
within the bounds of acceptable nonwork-related conversation on worktime, even if there is no
work actually being performed. In addition, as with the February Sears and pattern shop
counselings, the April 12 discipline issued to Sears and Hing for “loafing” in violation of rule 9
contains no mention of precisely how long they were speaking with one another, only that they
were discussing “an open booklet” and “nonwork related matters.” This indicates that
Respondent made no meaningful effort to determine whether the employees were in fact
abusing worktime, but simply intended to discipline two union officers found conversing,
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however briefly, regarding nonwork-related issues. In addition, Marczyszak testified that Butler
could have simply approached Sears and Hing to ask what they were doing, potentially a much
more efficient means of resolving the matter (Tr. 797–798). Butler’s unexplained failure to do so
indicates that, again, Respondent’s managers were more interested in issuing discipline to the
“union guys” than resolving problems in an expedient manner.
For all of the foregoing reasons, the evidence does not substantiate Respondent’s
contention that it issued the counseling to Hing and the verbal warning to Sears on April 12 for
nondiscriminatory reasons. Instead, I find that Sears and Hing were disciplined in retaliation for
their union activities, in violation of Sections 8(a)(1) and (3) of the Act, as alleged in paragraphs
20 and 21 of the complaint.
6. The counseling issued to Velez on April 13
Respondent contends that Rovello issued a counseling to Velez on April 13 based upon
her having observed him speaking with Cavaluzzi regarding nonwork-related topics. There is
no dispute that Velez and Cavaluzzi were discussing a baseball game at the time Rovello
approached them. In addition, Velez had not been a GMP officer since 1999.
However, the evidence overall establishes that the April 13 counseling was unlawfully
motivated. The April 13 counseling was issued one day after the unlawful discipline of Sears
and Hing for “loafing” in violation of general rule 9, described above. The circumstances of
Velez’s counseling are also similar to those involved in the previous counselings issued to
Sears, Norton, Domeracki, Vaast, Cavaluzzi, and Hing. In particular, Rovello made no attempt
to determine the length of Velez and Cavaluzzi’s discussion, but immediately announced that
she would be issuing discipline. As with the previous discipline issued pursuant to
Respondent’s newly implemented practice regarding general rule 9, the counseling does not
mention the length of Velez and Cavaluzzi’s conversation, and in fact states that when Rovello
approached Velez “left the area.” This is exactly the scenario that, given the testimony of
Marczyszak described above, would not warrant disciplinary action.58 Finally, as discussed
above regarding the February 3 counseling issued to Sears, the fact that Cavaluzzi was not
disciplined in connection with this incident because he appeared to Rovello to be working does
not preclude a finding that Velez’s counseling was unlawfully motivated. As a result, for all of
the foregoing reasons, I find that the evidence establishes that Velez, was “swept up” in
Respondent’s disparate and retaliatory prohibition on discussion regarding union matters on
worktime and changed practices regarding the application of general rule 9 prohibiting loafing or
abuse of time. See Allstate Power Vac, Inc., 357 NRB No. 33, at p. 3–5 (2011) (knowledge of
protected activity and violation established where employee “’caught up’ in the unlawful
discipline issued to known union adherents”); McKee Electric Co., 349 NLRB 463, 464–465
(2007) (violation established where unaffiliated applicants “’swept into [an] unlawful group’
refusal to hire”). As a result, I find that the evidence overall establishes that Respondent
violated Sections 8(a)(1) and (3) of the Act by issuing the April 13 counseling issued to Velez,
as alleged in paragraph 20 of the complaint.
7. The May 3 written warning issued to Sears

58 “If I walk [up] to people, and they’re briefly talking, and I ask them what they’re working
[on] and they break up, then they’ve gone back to work.”
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Respondent contends that the May 3 written warning it issued to Sears for “loafing or
other abuse of time” in violation of general rule 9 was engendered by legitimate,
nondiscriminatory considerations, written warning was also based upon the observations of
Butler and ultimately Marczyszak, who saw Sears talking to Norton in the pattern storage area.
According to Sears, he was on his way to get a drink of water at the fountain near Norton’s
bench, when Norton invited him to a meeting with an NLRB agent. Sears said that he would be
interested in attending if he did not have to work at the time. Sears and Norton testified that this
conversation lasted for about a minute or two. Ultimately the evidence establishes that the May
3 written warning was unlawfully motivated.
Butler initially saw Sears and Norton talking, and responded as he did when he observed
Sears and Hing together on April 12, that is, instead of confronting them directly he reported to
Marczyszak that Sears was “hanging around the pattern storage area . . .not working.” Butler
did not provide any plausible reason for informing Marczyszak about Sears and Norton’s
conversation, as opposed to simply approaching them himself, which would be the most direct
and efficient manner for dealing with the situation. Marczyszak then testified that he addressed
the situation as he did the February 3 incident between Sears and Cavaluzzi—by watching
Sears and Norton for “three or four minutes” prior to approaching them and asking Sears
whether he was working. Although Sears by all accounts left immediately after Marczyszak
confronted him, Marczyszak issued a written warning to him anyway. This course of action is
contrary to the interpretation of general rule 9 Marczyszak offered during the testimony quoted
above, namely that if “I ask them what they’re working [on] and they break up, then they’ve gone
back to work” and no discipline is necessary, whereas a conversation lasting “more than just a
few minutes,” followed by the employee’s refusal to “go back to work,” warrants discipline for
loafing.
Furthermore, consistent with the previous practice of Respondent’s managers, the
written warning itself, prepared by Marczyszak, makes no mention of the amount of time that he
observed Sears and Norton speaking, although that information is presumably crucial to a
determination as to whether or not Sears was “loafing” in violation of general rule 9. In fact,
Marczyszak admitted when he testified to observing Sears and Norton conversing for 3 to 4
minutes that he was “adding details” that he “didn’t think were important enough to add back in
May [2012], when the discipline took place” (Tr. 825–826). Marczyszak’s characterization of the
length of Sears and Norton’s conversation as an unimportant detail at the time of the discipline
indicates that the written warning he issued to Sears on May 3 was unlawfully motivated, and
not engendered by legitimate concerns regarding the possible violation of general rule 9. See
Valmont Industries, 328 NLRB at 314 (“post discipline statements” obtained in order to buttress
otherwise vague evidence that employee conversation took place on worktime indicate that
employer’s purportedly legitimate reason for discipline was in fact pretextual).
For all of the foregoing reasons, I find that Respondent has not established by a
preponderance of the evidence that the May 3 written warning issued to Sears was motivated
by legitimate, nondiscriminatory considerations. I therefore find that the written warning violated
Sections 8(a)(1) and (3) of the Act, as alleged in paragraph 22 of the complaint.
8. The May 29 suspension of Sears
Respondent claims that Sears was legitimately suspended on May 29 for another
incident of “loafing and abuse of time” in violation of general rule 9. Although the incident which
formed the basis for Sears’ suspension did not involve conversations between or with employee
union officers, I find that Respondent failed to substantiate its contention that it suspended
Sears for nondiscriminatory reasons.
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The evidence establishes that Marczyszak and Arnson discovered Sears sitting in the
maintenance area on May 29, drinking a soda. Sears testified that he had just been working on
the facility’s Morgan furnace, and because he was thirsty he wanted a drink before moving on to
his next task. Sears testified, as did Marcyszak and Arnson, that he had also taken off his
uniform work shirt due to the effect of the heat of the furnace. Marczyszak and Arnson also
confirmed that in response Marczyszak’s questions, Sears informed them that he had just been
working on the furnace. Marczyszak testified that he assumed that Sears had been “in there
sitting” for “minutes” because he and Arnson did not see Sears on their way into the
maintenance room. As a result, he suspended Sears for “loafing or other abuse of time” in
violation of general rule 9.
The evidence adduced by Respondent simply does not support its assertion that lawful
considerations engendered Sears’ suspension. For example, the evidence does not establish
that Sears’ actually having a drink was considered by Respondent to be an offense warranting
disciplinary action. For example, Vaast testified that employees are generally permitted to keep
beverages in their work areas, as long as they are covered, and Sears was not even in a work
area. Rovello testified that she stated during a subsequent grievance meeting that if Sears
needed a drink because he was thirsty after working on the furnace, he could have taken time to
get one with Arnson’s permission. It is entirely plausible that Sears would have become hot and
thirsty fixing a furnace, and it is undisputed that when Marczyszak and Arnson discovered him in
the maintenance area drinking his soda he had his uniform work shirt off, ostensibly because he
needed to cool down.
Furthermore, there are important discrepancies between Marczyszak’s testimony and
his written accounts of discovering Sears in the maintenance area that cast doubt upon
Marczyszak’s veracity, and ultimately his intent in issuing the suspension. Marczyszak
prepared two documents on May 29 regarding the incident leading to Sears’ suspension—a
written statement and the suspension letter itself. In his testimony, Marczyszak corroborated
Sears’ claim that he explained that he had been working on the furnace earlier (thus explaining
his thirst and his having removed his uniform shirt). However, Marczyszak’s written accounts
state that Sears told him that he was “going to fix the furnace,” i.e., that he had not yet done so
(GC Exhs. 39, 43). More importantly, while Marczyszak’s written account and the suspension
letter state that Sears said that he had stopped to get a drink of soda, Marczyszak testified that
Sears told him in response to the question, “What are you supposed to be working on now?”
that he was “working on getting a soda,” a substantially more insolent reply (Tr. 749–750).
Significantly, Arnson did not corroborate Marczyszak’s testimony describing Sears’ response as
having been phrased in such an impertinent manner (Tr. 1111). Nor did Arnson corroborate
Marczyszak’s written statement to the effect that he told Marczyszak after seeing Sears, “These
guys should know better, it’s his own fault” (G.C. Exh. 43, Tr. 1110–1111). In any event, there
is no dispute that after Marczyszak questioned him, Sears immediately left the maintenance
area and resumed working, the sort of behavior that Marczyszak testified would ordinarily not
warrant discipline. Nor would Sears’ having been in the maintenance room for “minutes.” In
any event, Marczyszak’s conclusion regarding the length of time that Sears had been sitting
down drinking a soda was based solely on his not having seen Sears while entering the
maintenance area. This is not compelling evidence that Sears’ May 29 conduct rose to the level
of abuse of time.
For all of the foregoing reasons, the evidence does not substantiate Respondent’s
proffered legitimate, nondiscriminatory reason for suspending Sears on May 29. As a result, the
evidence establishes that Sears’ suspension was unlawfully motivated, and violated Sections
8(a)(1) and (3) of the Act, as alleged in paragraph 23 of the complaint.
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9. More onerous working conditions and monitoring of Sears
The evidence establishes that by taking the series of disciplinary actions against Sears
on February 3, April 12, and May 3 and 29, Respondent subjected Sears to more onerous
working conditions, monitoring and harassment in retaliation for his union activities. As
discussed above, the evidence establishes that, at most, one other employee (with the
exception of the GMP officers and Velez) was subjected to Respondent’s new application of
general rule 9 to encompass short conversations between employees. While employee Shinichi
Niiyama was disciplined on March 12 for loafing, the disciplinary notice indicates that Niiyama
was using his cell phone, an offense which had warranted discipline in the past, and not
involved in a conversation with another employee. As a result, the only discipline supporting
Respondent’s position is the counseling of Jose Pacheco on January 11 for leaving his work
station at the furnace and talking to another employee. I decline to find an established practice
based upon that single event, particularly given the previous incidents of unlawfully motivated
discipline and statements violating Section 8(a)(1) established by this record. I further note that
Sears, like Norton and Velez, was an employee who had no specific assigned work station, and
moved throughout the plant during the day. In the past, the Board has found violations involving
monitoring and harassment of such employees, who as a result of their mobility can engage in
union activity encompassing a larger segment of the bargaining unit, than can employees
assigned to a specific work station. See Valmont Industries, 328 NLRB at 309–310, 313–314.
As a result, I find that the unlawful disciplinary actions described above constitute a pattern of
monitoring and harassment imposed upon Sears, in violation of Sections 8(a)(1) and (3), as
alleged in paragraph 24 of the complaint.59
C. Allegations Regarding Unilateral Changes in Violation of Sections 8(a)(1) and (5)
1. Applicable legal standards and Collyer deferral
Under Section 8(a)(5) of the Act, an employer may not unilaterally institute changes in
wages, hours, and other terms and conditions of employment involving mandatory subjects of
bargaining without bargaining with the certified representative to impasse or agreement. NLRB
v. Katz, 369 U.S. 736, 742–743 (1962); NLRB v. Borg-Warner Corp., Wooster Division, 356
U.S. 342, 349 (1958). An employer therefore violates Section 8(a)(5) by altering terms and
conditions of employment involving mandatory subjects of bargaining without providing the
union with notice and the opportunity to bargain. See, e.g., Southern New England Telephone
Co., 356 NLRB No. 62, at p. 8 (2010). General Counsel establishes a prima facie violation of
Section 8(a)(5) by demonstrating that an employer made a material and substantial change in a

59 I do not find any violation in this regard based upon Sears and Velez’s testimony that
Marczyszak looked for Sears or asked him what he was working on when he came upon Sears
in the plant. Their testimony was relatively vague, and Sears’ testimony revealed the contention
in his affidavit that Marczyszak interrupts or actively follows him two or three times per day to be
exaggerated (Tr. 593–594). The evidence establishes that Marczyszak, as plant manager,
performs several walk throughs of the plant during the course of the day, as he is ultimately
responsible for the overall management of the facility and the production process. I do not find
any violation in Marczyszak’s asking Sears what he is working on during these walk throughs,
as that may not be apparent given that Sears’ tasks and work areas fluctuate on a daily basis,
and knowledge of employee work activities is clearly within Marczyszak’s purview as plant
manager.
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term or condition of employment constituting a mandatory subject of bargaining, without
providing the union with notice and opportunity to bargain. Success Village Apartments, 348
NLRB 579, 579–580, 628 (2006), citing Chemical Workers Local 1 v. Pittsburg Plate Class Co.,
404 U.S. 157, 159 (1971). The employer must then provide evidence to show that the unilateral
change was permissible in some manner. Success Village Apartments, 348 NLRB at 628.
Where the complaint alleges that an employer has made unilateral changes in terms and
conditions of employment which constituted a past practice, it is the General Counsel’s burden
to establish the existence of the past practice at issue. Southern New England Telephone Co.,
356 NLRB No. 62 at p. 8; Exxon Shipping Co., 291 NLRB 489, 493 (1988). In order to prove
the existence of a past practice, General Counsel must establish “an activity which has been
satisfactorily established by practice or custom” or an “established condition of employment.”
Exxon Shipping Co., 291 NLRB at 493. The activity in question must occur with sufficient
“regularity and frequency” during an “extended period of time” such that it “would reasonably be
expected to continue.” Philadelphia Coca-Cola Bottling Co., 340 NLRB 349, 353 (2003), enfd.,
112 Fed.Appx. 65 (D.C.Cir. 2004).
Respondent argues in its post hearing brief that the allegations regarding unilateral
changes should be deferred to the grievance and arbitration procedure contained in the IUE
collective-bargaining agreement, pursuant to Collyer Insulated Wire, 192 NLRB 837 (1971).
Whether deferral to the grievance and arbitration process is appropriate is a “threshold
question” which must be decided prior to addressing the merits of the allegations at issue.
Sheet Metal Workers Local 18—Wisconsin, 359 NLRB No. 121, at p. 2 (2013), quoting L.E.
Myers Co., 270 NLRB 1010, 1010, fn. 2 (1984). It is well settled that deferral to arbitration is
appropriate where:
the parties’ dispute arises within the confines of a long and productive collective-
bargaining relationship; there is no claim of animosity to employees’ exercise of
Section 7 rights; the parties’ agreement provides for arbitration in a broad range
of disputes; the parties’ arbitration clause clearly encompasses the dispute at
issue; the party seeking deferral has asserted its willingness to utilize arbitration
to resolve the dispute; and the dispute is well suited to resolution by arbitration.
Sheet Metal Workers Local 18—Wisconsin, 359 NLRB No. 121, at p. 2
The evidence establishes that the unilateral change allegations here are inappropriate
for deferral under this standard. Respondent contends that the alleged unilateral refusal to
permit the use of the office copy machine should be deferred based upon the IUE contract’s
management rights and zipper clauses (Art. 1(G) and Art. 31), and based upon Art. 21(A), which
states that “No member of the Union shall carry on union activities during work hours on the
premises of the Employer.” However, the refusal to permit the use of the office copy machine is
part of the written warning issued to Sears on May 3, and is therefore inextricably related to the
allegation that Respondent violated Sections 8(a)(1) and (3) by having issued it. See American
Commercial Lines, 291 NLRB 1066, 1069 (1988); Clarkson Industries, 312 NLRB 349, 351-352
(1993) (declining to defer allegation regarding retaliatory warning which was “closely related” to
alleged violation of Section 8(a)(1) which was inappropriate for deferral). In addition,
Respondent does not contend that any of the alleged retaliatory discipline should be deferred to
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the grievance and arbitration procedure.60 As a result, deferral of the alleged unilateral refusal
to permit employees to use the office copy machine is inappropriate.
I also find it inappropriate to defer the allegation that Respondent violated Section
8(a)(5) by unilaterally refusing to pay the cost of printing the IUE contract booklet. The facts
surrounding this allegation are contemporaneous with the facts pertaining to the Section 8(a)(1)
and (3) violations, in that discussions regarding the cost of printing the contract took place
during grievance and other labor-management meetings addressed previously. In addition, the
Collyer standard requires “no claim of employer enmity to the employees’ exercise of protected
rights,” a criterion which is not met in this case given the retaliatory discipline and unlawful
statements established by the record. Clarkson Industries, 312 NLRB at 350. Finally, the
Collyer analysis requires an affirmative assertion of the employer’s willingness to waive any
contention that a grievance would be precluded by the contract as untimely. See, e.g., Pepsi-
Cola Co., 330 NLRB 474, 477–478 (2000). Marczyszak’s testimony in this regard was a bit
equivocal (Tr. 770). For all of the foregoing reasons, I find that deferral of the allegations that
Respondent violated Section 8(a)(5) of the Act to the grievance and arbitration procedure is not
appropriate in this case.
2. Alleged unilateral refusal to permit IUE representatives to use the office photocopier
The evidence does not establish that Respondent unilaterally refused to permit IUE
representatives to use the office photocopier, in that the General Counsel has not met its
burden to prove any previous use of the copier by union representatives rising to the level of a
legally cognizable past practice. General Counsel’s sole evidence regarding the IUE
representatives’ previous use of Respondent’s office copier was Sears’ testimony that he had
used the copier for union matters “Whenever I needed to” and “many times” during the course of
his nearly 25 years of employment (Tr. 485, 487). However, the only specific example Sears
could provide involved copying paperwork for his own work-related injury in December 2011,
which is a qualitatively different matter from copying grievances or union related documents (Tr.
486). Even if Sears was copying union related documents at the time, this evidence would be
“too remote in time and too intermittent” to establish a past practice binding upon Respondent.
See Exxon Shipping Co., 291 NLRB at 493. The evidence also establishes that Sears routinely
begins his shift hours before any of Respondent’s office personnel start work, allowing him to
have used the copier in the past without their knowledge. I therefore credit Rovello’s testimony
that she never saw Sears use the copy machine (Tr. 927). Although Sears testified that he
used the copier many times in front of Rovello’s predecessor, Joan Marie Bresnehan, the
evidence establishes that Rovello succeeded Bresnehan approximately 6 years ago. Thus, any
use of the copier during Bresnehan’s tenure would be similarly attenuated, given the complaint’s
allegation that the unilateral change occurred in 2012 (Tr. 485).
Other evidence also militates against finding a past practice with respect to the use of
the office copier for union related business. The evidence establishes that the IUE had an
additional printer in the maintenance department, which was used by representatives
Agramonte and Dalton to print and copy union related documents (Tr. 533–534, 746). Neither
Agramonte nor Dalton testified in order to clarify the circumstances under which this printer was
used, or to corroborate Sears’ testimony that the IUE representatives used the office copier on a
regular basis for union related purposes. In addition, the evidence indicates that after

60 The collective-bargaining agreement’s provision prohibiting discrimination, Art. 1(F), does
not encompass discrimination based upon union activity.
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Marczyszak removed this printer during his initial year of employment with the company, tool
and die maker Louis David used his company computer to print a notice regarding an IUE
meeting (Tr. 928; R.S. Exh. 30). David was promptly issued a verbal reprimand for using a
company printer for union business (R.S. Exh. 30). Respondent also informed Agramonte in the
context of a verbal counseling for the use of the company fax machine for personal business
that “If you need to use the Fax for Union purposes, permission needs to be granted” (R.S. Exh.
8).61 All of this evidence illustrates that Respondent had no established practice of permitting
the use of company office equipment for union-related matters.
For all of the foregoing reasons, I find that General Counsel has not established a past
practice of IUE representatives’ using Respondent’s office copier for union related purposes.62 I
therefore find that Respondent’s prohibiting Sears from doing so in its May 3 written warning did
not constitute a change in terms and conditions of employment effected without providing the
IUE with notice and the opportunity to bargain. As Respondent did not violate Sections 8(a)(1)
and (5) of the Act in the manner alleged in paragraph 31 of the complaint, I will recommend that
this allegation be dismissed.
3. Alleged unilateral refusal to pay the cost of printing the IUE contract booklet
I similarly find that the General Counsel has not met its burden of proving the existence
of a past practice regarding Respondent’s contribution to the cost of printing an IUE contract
booklet. As a result, Respondent’s refusal to do so in 2012 did not constitute an unlawful
unilateral change.
Here again, General Counsel offered solely the testimony of Sears to establish a past
practice with respect to Respondent’s paying or sharing the cost of printing a contract booklet.
There is no documentary evidence to establish that Respondent has ever shared the cost of
printing a booklet. Sears testified that despite the fact that the topic has never been discussed
during negotiations, Respondent had always printed the booklet, at its own expense, and
distributed it to the bargaining unit employees. However, Sears was vague about the number
and time period of the negotiations he actually attended, and was only ultimately certain that he
attended the 2011 sessions. Sears also had little knowledge regarding the process culminating
in the finalization of the contract after the memorandum of understanding was signed (Tr. 508–
522). In fact, Sears’ testimony that Respondent funded the entire cost of printing the booklet
was less credible than Lochman and Rovello’s contention that Respondent paid only half the
cost. Although IUE representative Humberto Leone was apparently involved in the negotiations
(one would presume as the union’s chief spokesperson), and dealt with Rovello afterwards in
order to finalize the agreement, he was not called to corroborate Sears. In particular, Rovello’s

61 I find the actual discipline issued to Agramonte, and to Domeracki for the use of the fax
machine December 2010, to be less compelling than argued by Respondent, as both
Agramonte and Domeracki used the fax machine on those occasions for personal, as opposed
to union related, business (R.S. Exhs. 8, 31). Agramonte in particular apparently sent a fax to
the Dominican Republic. The evidence does not establish that any of this discipline was the
subject of a grievance by the IUE.
62 Because I find that no past practice has been established and therefore no unilateral
change took place, I find it unnecessary to address Respondent’s arguments that the IUE
waived its right to bargain via Art. 31 of the collective-bargaining agreement regarding any
change in the use of the office copier, and Respondent’s argument that any change was de
minimis.
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email to Leone declining to share the cost of printing a contract booklet states, consistent with
her testimony, that “the union’s attorney in a response to our attorneys indicated they were
comfortable with a paper agreement as well.” (R.S. Exh. 32). General Counsel and the IUE
produced no one to refute this contention.63
As a result, I credit the more detailed testimony of Lochman, Respondent’s chief
spokesperson, and Rovello, both of whom contended that during the 2008 negotiations with the
IUE, the Union proposed and Respondent ultimately agreed to share the cost of printing a
contract book for the bargaining unit employees. I further credit their testimony that no such
explicit agreement was reached during the 2011 negotiations, as had occurred during
negotiations with the GMP (R.S. Exh. 5). I credit their testimony that as a result Respondent did
not acquiesce in Leone’s suggestion that Respondent share in the cost of printing the contract
booklet after negotiations had concluded.
For all of the foregoing reasons, the General Counsel has not established the existence
of a past practice of paying the cost of printing an IUE contract booklet.64 As a result, its refusal
to do so after the 2011 negotiations did not constitute a unilateral change in terms and
conditions of employment in violation of Sections 8(a)(1) and (5) of the Act. I shall therefore
recommend that paragraph 32 of the complaint be dismissed.
D. Policies Allegedly Violating Section 8(a)(1)
1. Applicable legal standards
It is well settled that an employer’s maintenance of a work rule which reasonably tends
to chill employees’ exercise of their Section 7 rights violates Section 8(a)(1) of the Act.
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd., 203 F.3d 52 (D.C. Cir. 1999). A
particular work rule which does not explicitly restrict Section 7 activity will be found unlawful
where the evidence establishes one of the following: (i) employees would “reasonably construe
the rule’s language” to prohibit Section 7 activity; (ii) the rule was “promulgated in response” to
union or protected concerted activity; or (iii) “the rule has been applied to restrict the exercise of
Section 7 rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004). The Board
has cautioned that rules must be afforded a “reasonable” interpretation, without “reading
particular phrases in isolation” or assuming “improper interference with employee rights.”
Lutheran Heritage Village-Livonia, 343 NLRB at 646. Ambiguities in work rules are construed
against the party which promulgated them. Lafayette Park Hotel, 326 NLRB 824, 828 (1998).
None of the rules at issue here explicitly restrict Section 7 activity, and there is no
evidence that they were promulgated in response to union activity or have been applied to
restrict the exercise of Section 7 rights. As a result, the sole consideration is whether
employees would reasonably construe the language of the rules to prohibit Section 7 activity.

63 I do not find it appropriate to make an adverse inference regarding the existence of a past
practice for sharing the cost of printing the contract based upon Leone’s failure to testify,
however, as there is no evidence in the record as to his participation in negotiations prior to
2011.
64 Again, because I find that General Counsel has not established the existence of a past
practice which Respondent unilaterally altered, I find it unnecessary to consider Respondent’s
arguments regarding waiver and the de minimis nature of any change.
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2. Protecting group assets policy
Under pertinent Board law, the protecting group assets policy would not be reasonably
construed by employees to restrict Section 7 activity, and the policy therefore does not violate
Section 8(a)(1). The Board’s analysis of such confidentiality policies has typically turned upon
whether or not they explicitly include employee or personnel information. The Board has held
that confidentiality policies which explicitly apply to personnel information are impermissibly
susceptible to an interpretation restricting employees from protected activities involving their
terms and conditions of employment, and therefore violate Section 8(a)(1) of the Act. See, e.g.,
DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB No. 54, at p. 3 (2013) (rule prohibiting
employees from discussing “job,” “DIRECTV employees” and “employee records” could be
interpreted to prohibit discussion of terms and conditions of employment); Costco Wholesale
Corp., 358 NLRB No. 106, at p. 15–16 (2012) (rule prohibiting the disclosure of confidential
information, explicitly defined as including employee names, addresses, and other personal
information, overly broad). Confidentiality policies which do not by their terms encompass
employee information, however, are not reasonably construed to prohibit Section 7 activity. See
Super K-Mart, 330 NLRB 263, 263–264 (1999) (rule prohibiting “disclosure” of “Company
business and documents” not amenable to an interpretation which would restrict Section 7
activity); Lafayette Park Hotel, 326 NLRB at 824, 826 (rule prohibiting “Divulging Hotel-private
information to employees or other individuals or entities that are not authorized to receive” it not
unlawfully restrictive).
Respondent’s protecting group assets policy is lawful under this standard. As in Super
K-Mart and Lafayette Park Hotel, the protecting group assets rule does not explicitly encompass
employee or personnel information as part of its definition of “confidential information” or
“knowledge, decision or any information about” Respondent “which may in any way prejudice”
Respondent’s interest. Furthermore, the context of these specific statements militates against
an interpretation that would tend to restrict Section 7 activity. The paragraph of the rule
immediately preceding the disputed language states that “preserving, protecting and responsibly
using company assets including intellectual property is essential to remain competitive,” so that
“we must take all appropriate measures to protect them” and “to respect third parties’ proprietary
information rights.” Thus, the disputed language is prefaced by a statement affirming
Respondent’s “substantial and legitimate interest in maintaining the confidentiality” of its
intellectual property and that of its customers and suppliers. Lafayette Park Hotel, 326 NLRB at
826; see also Super K-Mart, 330 NLRB at 263–264. In this context, the disputed language
would more reasonably be understood by employees as applying to intellectual property and
other confidential information pertaining to the production process or the products themselves,
and not to the terms and conditions of their employment.
General Counsel contends that the portion of the rule requiring employees to “safeguard
and not disclose any knowledge, decision or information…which may in any way prejudice the
interests of” Respondent would be reasonably interpreted to apply to protected concerted
activities involving terms and conditions of employment. However, the Board has in the past
rejected an approach which would automatically construe Section 7 or union activity as inimical
to an employer’s interest. See Lafayette Park Hotel, 326 NLRB at 824–826 (declining to find
that rule prohibiting conduct “that does not support [employer’s] goals and objectives” could
reasonably be interpreted to include union activity).
For all of the foregoing reasons, I find that Respondent’s protecting group assets policy
would not reasonably be interpreted by employees as prohibiting Section 7 activity. I therefore
find that Respondent’s maintenance of the protecting group assets policy did not violate Section
8(a)(1) of the Act, and will recommend that paragraph 12(a) of the complaint be dismissed.
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3. Dress code policy
It is well settled that Section 7 protects the right of employees to wear union insignia in
the work place. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); W San Diego, 348
NLRB 372, 373 (2006). An employer may restrict employees from wearing union insignia only
when justified by “special circumstances,” such as when the display of union insignia might
“jeopardize employee safety, damage machinery or products, exacerbate employee
dissension,” “unreasonably interfere with a public image that the employer has established,” or
impair “decorum and discipline among employees.” Komatsu America Corp., 342 NLRB 649,
650 (2004). It is the employer’s burden to establish special circumstances which justify a
restriction on the display of union insignia. W San Diego, 348 NLRB at 373.
Respondent’s dress code does not explicitly prohibit the display of union insignia or
require special permission when employees wish to wear certain items typically associated with
union activity, such as buttons or pins. Nor is there any evidence that Respondent has
interpreted the dress code to prohibit employees from wearing union insignia. In fact, the
evidence establishes that in November 2008 employees wore red shirts on several occasions
pursuant to a Notice posted on the IUE bulletin board in order to express their dissatisfaction
with Respondent’s management. There is no evidence that any employee was disciplined for
violating the dress code as a result of this incident.65
General Counsel nevertheless contends that Respondent’s dress code policy violates
Section 8(a)(1) because of the statement that Respondent “reserves the right to address an
employee’s attire, jewelry, or any aspect of grooming” which it “believes to be…not promoting
customer good will or the subject of business disruption or complaint.” General Counsel argues
that the policy is overbroad because this language could be reasonably interpreted by
employees as prohibiting the wearing of union insignia. However, the Board has found that
similar language in employer policies is not susceptible to an interpretation encompassing
Section 7 activities. For example, in Lafayette Park Hotel, the Board held that a rule prohibiting
unlawful or improper off-duty conduct “which affects the . . . hotel’s reputation or good will in the
community” did not violate Section 8(a)(1), as the rule would be reasonably interpreted to
encompass only “serious misconduct, not conduct protected by the Act.” 326 NLRB at 826–
827. Similarly, in Tradesmen International, 338 NLRB 480, 480–481 (2002), the Board held that
a rule prohibiting “disruptive” conduct was permissible, in that it would not reasonably restrict the
employees’ exercise of their Section 7 rights. In these cases, the Board has interpreted such
language as pertaining to legitimate business concerns and “serious misconduct,” as opposed
to protected concerted activity. Given the evidence in the record here establishing that
employees have worn clothing to support a particular union initiative without disciplinary
repercussions, there is no basis for finding that Respondent’s dress code policy would be
reasonably interpreted to prohibit the display of union insignia. See, e.g., Tradesmen
International, 338 NLRB at 481 (rule prohibiting certain off-duty conduct permissible where
record contained no evidence that Respondent enforced it against employees for engaging in
protected activity); Lafayette Park Hotel, 326 NLRB at 827 (same).

65 Given the facial neutrality of Respondent’s dress code and the lack of evidence that it was
disparately enforced, I decline to apply the “special circumstances” test pursuant to Republic
Aviation and its progeny, as opposed to the work rule analysis articulated in Lutheran Heritage
Village-Livonia.
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This conclusion is further supported by the structure of the dress code policy and the
context for the language that General Counsel contends renders the rule unlawful. The portion
of the policy preceding the disputed language repeatedly refers to “reasonable standards for
business attire,” “appropriate” dress given the employee’s responsibilities, and “safe practices.”
Immediately prior to the language stating that Respondent may “address” attire, jewelry, or
grooming not “promoting customer good will or the subject of business disruption or complaint,”
the rule refers to such aspects of personal appearance which may be “unsafe,” “distracting,” and
“unsanitary.” Overall, this context indicates that the dress code policy was engendered by
Respondent’s legitimate concerns with safety and appropriate business attire, as opposed to
precluding employees from exercising their Section 7 rights.
For all of the foregoing reasons, I find that Respondent’s dress code policy is not
reasonably susceptible to an interpretation which would prohibit employees from displaying
union insignia or otherwise engaging in protected activity. I therefore find that the dress code
policy did not violate Section 8(a)(1) of the Act, and will recommend that paragraph 12(b) of the
complaint be dismissed.
4. Public statements policy
Respondent’s Public Statements policy states that inquiries by the public media, such as
“newspapers, trade publications” and “radio and television stations” must be “referred to and
handled only by or at the direction of the Vice President of Human Resources for BURNDY LLC
or the Legal Department or both.” I find that this policy would reasonably be interpreted as
prohibiting employees from engaging in Section 7 activity, and that Respondent therefore
violated Section 8(a)(1) by maintaining it.
It is well settled that employee communications with the news media regarding labor
disputes are protected under Section 7 of the Act. DirecTV U.S. DirecTV Holdings, LLC, 359
NLRB No. 54, at p. 1; Trump Marina Associates, 354 NLRB No. 123 at p. 3 (2009), 355 NLRB
No. 107 (2010) (three member Board), enfd., 435 Fed.Appx. 1 (D.C.Cir. 2011); Crowne Plaza
Hotel, 352 NLRB 382, 386 fn. 21 (2008). The Board has also held that an employer may not
require that employees obtain supervisory or managerial approval prior to engaging in Section 7
activity. DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB No. 54, at p. 2; Brunswick Corp., 282
NLRB 794, 795 (1987). Respondent’s Public Statements policy effectively precludes
employees from responding to any media inquiries at all, unless specifically directed to do so by
management, and therefore runs afoul of these principles. The policy’s prohibition against
responding to media inquiries is articulated in the context of “the importance of communications
with the news media” and the goal of ensuring “that all information about the Company and its
business and operations provided to the media is accurate and consistent with the Company’s
policies.” However, these statements of purpose are inadequate to ameliorate the unlawful
prohibition against employee communications with the news media that Respondent has not
explicitly authorized. See DirecTV U.S. DirecTV Holdings, LLC, 359 NLRB No. 54, at p. 1-2, fn.
4 (unlawful policy ostensibly intended to “ensure the company presents a united, consistent
voice to a variety of audiences”). Nor is there any attempt made in the policy to distinguish
between activity protected under Section 7 and unprotected communications, such as
maliciously false statements. Id. at p. 1–2. As a result, Respondent’s public statements policy
is overbroad, and could reasonably be interpreted by employees as prohibiting activity protected
by Section 7 of the Act.
For all of the foregoing reasons, I find that Respondent’s maintenance of the public
statements policy violated Section 8(a)(1), as alleged in paragraph 12(c) of the complaint.
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5. Policy prohibiting solicitation (general rule violations #6)
General Counsel alleges that Respondent’s policy prohibiting solicitation violates Section
8(a)(1) of the Act in that it prohibits solicitation “for any purpose on Company time, except when
authorized to do so for Company-sponsored programs.” The Board has held that a rule
prohibiting solicitation on “company time” is overbroad and presumptively invalid, as it could
reasonably be construed as prohibiting solicitation during break times or periods when
employees are not actually working. See, e.g., A.P. Painting & Improvements, Inc., 339 NLRB
1206, 1207 (2003); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
Respondent contends that the no-solicitation language quoted above is not unlawful, in
that it refers to a statement of the no-solicitation policy contained in its Employee handbook
which provides as follows:
Other than that which is approved by the Company, employees may not
distribute literature or printed materials of any kind, sell merchandise, solicit
financial contributions, or solicit for any other cause during working time.
Working time includes the working time of both the employee doing the
solicitation or distribution or posting and the employee to whom it is being
directed. Furthermore, employees may not distribute non-approved literature or
printed material of any kind in working areas at any time. This policy also
prohibits non-approved solicitations via the Company’s e-mail and other
electronic and telephonic communication systems.
Respondent argues that its descriptions of the no-solicitation policy are similar to those
found permissible by the Board in Mediaone of Greater Florida, Inc., 340 NLRB 277, 277–278
(2003). In that case, the employer’s handbook contained a summary of its policies entitled,
“Business Integrity and Ethics Policies at a Glance,” which briefly summarized each policy and
referred the reader to the specific page containing a statement of the policy in full. Mediaone of
Greater Florida, Inc., 340 NLRB at 277. The paraphrased version of the no-solicitation policy—
“You may not solicit employees on company property”—was overbroad. However, the complete
statement of the policy to which it referred—“You may not solicit another employee in work
areas during work time”—complied with the law. Because the brief summary of the no-
solicitation policy explicitly referred to the page containing the complete one, the Board found
that “a reasonable employee would readily disregard” the unlawful statement of the rule
contained in the summary, and would rely on the policy’s full, and legally permissible,
explication. Mediaone of Greater Florida, Inc., 340 NLRB at 278. As a result, the policy overall
was not presumptively invalid. Mediaone of Greater Florida, Inc., 340 NLRB at 277–278.
The employee handbook and general rule violations at issue here, however, are not
comparable to the two iterations of the no-solicitation rule at issue in Mediaone of Greater
Florida, Inc. Here, the presumptively invalid formulation of the no-solicitation rule is contained
not in a summary of policies, but in a list of “General Rule Violations” prefaced by the following
statement:
Any violation of a Company Policy is cause for disciplinary action. The General
Rules listed below cover specific infractions for emphasis. Single incidents in
violation of a General Rule are cause for disciplinary action. The nature of the
discipline will vary depending on the circumstances involved, and in some cases,
the immediate termination of an employee’s employment may be appropriate.
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Furthermore, the general rule violations contain no specific reference directing the reader to any
other portion of the employee handbook, as was the case in Mediaone of Greater Florida, Inc.
As a result, there is no reason for an employee to conclude that the version of Respondent’s no-
solicitation policy contained elsewhere in the handbook would apply, as opposed to the facially
overbroad policy listed as one of the general rule violations. An employee would reasonably
interpret the handbook overall as stating that violating the unlawful statement of the policy would
result in disciplinary action. I therefore find that Mediaone of Greater Florida, Inc. is
distinguishable, and that Respondent’s no-solicitation policy is presumptively invalid.
Nor has Respondent adduced evidence sufficient to satisfy its burden to show that it
“communicated or applied the rule in a way that conveyed a clear intent” to permit solicitation in
during nonworking time. See Teletech Holdings, Inc., 333 NLRB 402, 403 (2001) (employer
bears the burden to prove that it communicated or applied a presumptively invalid rule in a
lawful manner); Our Way, Inc., 268 NLRB 394 (1983). Norton’s testimony that he passed
around bereavement cards for employees to sign during break time hardly establishes that
Respondent applied the facially invalid rule in a permissible manner. In fact, Rovello testified
that she concluded that Norton was engaged in nonwork-related activity on worktime, and
consequently issued the February 10 verbal counseling to him, because he was carrying the
manila folder in which he kept these cards. Furthermore, Respondent’s contention that the
January 3 petition and other documents protesting management’s conduct were signed during
non worktimes is pure speculation. As a result, I find that Respondent has not presented
evidence adequate to substantiate a claim that it actually applied the presumptively invalid no-
solicitation policy in a lawful manner.
For all of the foregoing reasons, I find that Respondent’s general rule violations #6
constitutes an overly broad rule against solicitation, maintained by Respondent in violation of
Section 8(a)(1) of the Act, as alleged in paragraph 12(d) of the complaint.
Conclusions of Law
1. The Respondent, Burndy, LLC, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The GMP and the IUE are labor organizations within the meaning of Section 2(5) of
the Act.
3. By disparately enforcing a “no-talk” rule to prohibit discussions involving union
matters while permitting discussions of other nonwork-related matters on worktime, Respondent
violated Section 8(a)(1) of the Act.
4. By threatening employees with discipline in retaliation for their union activity,
Respondent violated Section 8(a)(1) of the Act.
5. By threatening employees with unspecified reprisals in retaliation for their union
activity, Respondent violated Section 8(a)(1) of the Act.
6. By creating the impression that employees’ union activities were under surveillance,
Respondent violated Section 8(a)(1) of the Act.
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7. By maintaining an public statements policy which prohibits employees from
responding to media inquiries without prior approval and limits the employees authorized to
speak to the media, Respondent violated Section 8(a)(1) of the Act.
8. By maintaining general rule violations 6 which prohibits solicitation for any
unauthorized purpose on company time, Respondent violated Section 8(a)(1) of the Act.
9. By harassing employees in retaliation for their union activity, Respondent violated
Section 8(a)(1) and (3) of the Act.
10. By issuing the following discipline to the named employees on the following dates in
retaliation for their union activity, Respondent violated Sections 8(a)(1) and (3) of the Act:
Name Discipline
Robert Sears February 3, 2012 counseling
Thomas Norton February 10, 2012 counseling
Daniel Domeracki February 10, 2012 counseling
Michael Cavaluzzi February 10, 2012 counseling
Michael Vaast February 13, 2012 counseling
Robert Sears April 12, 2012 verbal warning
Robert Hing April 12, 2012 counseling
Radames Velez April 13, 2012 counseling
Robert Sears May 3, 2012 written warning
11. By suspending Robert Sears on May 29, 2012, in retaliation for his union activity,
Respondent violated Sections 8(a)(1) and (3) of the Act.
12. By disparately applying general rule 9 prohibiting loafing or other abuse of time in
retaliation for employees’ union activity, Respondent violated Sections 8(a)(1) and (3) of the Act.
13. By imposing more onerous working conditions on and monitoring employees in
retaliation for their union activity, Respondent violated Sections 8(a)(1) and (3) of the Act.
14. Respondent has not violated the Act in any other manner.
15. The above-described unfair labor practices affect commerce within the meaning of
Sections 2(2), (6), and (7) of the Act.
The Remedy
Having found that Respondent has violated Sections 8(a)(1) and (3) of the Act, I shall
recommend that it cease and desist therefrom and take certain affirmative action necessary to
effectuate the Act’s purposes.
Having found that Respondent violated the Act by suspending Robert Sears,
Respondent shall be ordered to make Sears whole for any loss of earnings he may have
suffered as a result of its unlawful conduct, as prescribed in F.W. Woolworth Co., 90 NLRB 289
(1950), with interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010),
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enf. denied on other grounds, 647 F.3d 1137 (D.C. Cir. 2011). Respondent shall also be
required to remove from its files all references to Sears’ unlawful suspension, written warning,
verbal warning, and counseling, and to remove from its files all references to the counselings
issued to Thomas Norton, Michael Vaast, Daniel Domeracki, Michael Cavaluzzi, Robert Hing,
and Radames Velez, and to notify these employees in writing that this has been done and that
the discipline shall not be used against them. Finally, Respondent shall be ordered to post a
notice, in English and Spanish, informing its employees of its obligations herein.
Upon the foregoing findings of fact and conclusions of law, and upon the entire record, I
issue the following recommended66
ORDER
Respondent Burndy, LLC, Bethel, Connecticut, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Disparately enforcing a “no talk” rule to prohibit discussions involving union matters
while permitting discussions of other nonwork-related matters on worktime.
(b) Threatening employees with discipline in retaliation for their union activity.
(c) Threatening employees with unspecified reprisals in retaliation for their union
activity.
(d) Creating the impression that employees’ union activities are under surveillance.
(e) Maintaining a public statements policy which prohibits employees from responding to
media inquiries without prior approval, and limits the employees authorized to speak with the
media.
(f) Maintaining general rule violations 6 which prohibits solicitation for any unauthorized
purpose on company time.
(g)Harassing employees in retaliation for their union activity.
(h) Disciplining employees in retaliation for their union activity.
(i) Suspending employees in retaliation for their union activity.
(j) Disparately applying general rule 9 prohibiting loafing or other abuse of time in
retaliation for employees’ union activity.
(k) Imposing more onerous working conditions on and monitoring employees in
retaliation for their union activity.

66 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Section
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(l) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Make whole with interest Robert Sears for any lost wages he may have suffered as
a result of Respondent’s unlawful discrimination against him, in the manner set forth in the
Remedy section of this decision.
(b) Within 14 days of the date of this Order, remove from all files any reference to the
following discipline issued to the named employees, and within 3 days thereafter, notify the
employees in writing that this has been done and that the discipline will not be used against
them in any way:
Name Discipline
Robert Sears February 3, 2012 counseling
Thomas Norton February 10, 2012 counseling
Daniel Domeracki February 10, 2012 counseling
Michael Cavaluzzi February 10, 2012 counseling
Michael Vaast February 13, 2012 counseling
Robert Sears April 12, 2012 verbal warning
Robert Hing April 12, 2012 counseling
Radames Velez April 13, 2012 counseling
Robert Sears May 3, 2012 written warning
Robert Sears May 29, 2012 suspension
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay, if any, due under the terms of
this Order.
(d) Rescind the public statements policy and general rule violations 6.
(e) Furnish all current employees with inserts or amendments to the current employee
handbook that (1) advise employees that the unlawful rules have been rescinded, or (2) provide
the language of lawful rules; or publish and distribute revised employee handbooks that (1) do
not contain the unlawful rules, or (2) provide the language of lawful rules.
(f) Within 14 days after service by the Region, post at the facility at the Bethel,
Connecticut, copies of the attached notice marked “Appendix.”67 Copies of the notice, on forms
provided by the Regional Director for Region 1, after being signed by Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in

67 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site and/or other electronic means if Respondent
customarily communicates with its employees by such means. Notices shall be posted and, if
pertinent, electronically distributed, in English and Spanish. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since September 1, 2011.
(g) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated: Washington, DC July 31, 2013
___________________________________
Lauren Esposito
Administrative Law Judge
JD(NY)–35–13
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT suspend you because you engage in activities on behalf of the International Union
of Electronic, Electrical, Technical, Salaried and Machine Workers, IUE/CWA Communications
Workers of America (“IUE”).
WE WILL NOT discipline you because you engage in activities on behalf of the IUE or the Glass,
Molders, Pottery, Plastics & Allied Workers International Union (“GMP”).
WE WILL NOT disparately apply our general rule 9 prohibiting loafing or other abuse of time to
you in retaliation for your activities on behalf of the IUE or the GMP.
WE WILL NOT impose more onerous working conditions on you or monitor you in retaliation for
your activities on behalf of the IUE.
WE WILL NOT harass you in retaliation for your activities on behalf of the IUE.
WE WILL NOT threaten you with discipline in retaliation for your support for or activities on behalf
of the GMP.
WE WILL NOT threaten you with unspecified reprisals in retaliation for your support for or activities
on behalf of the GMP.
WE WILL NOT create the impression that your activities on behalf of the GMP are under
surveillance.
WE WILL NOT apply a rule against talking during worktime to prohibit conversations about the
IUE or the GMP, when we permit employees to talk about other nonwork-related matters.
WE WILL NOT maintain a public statements policy which prohibits employees from responding to
media inquiries without prior approval, and limits which employees can respond to media
inquiries.
WE WILL NOT maintain a general rule violation which prohibits solicitation for any unauthorized
purpose on company time.
JD(NY)–35–13
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed to them by Section 7 of the Act.
WE WILL make Robert Sears whole for any loss of earnings and other benefits suffered as a
result of his suspension on May 29, 2012, less any net interim earnings, plus interest
compounded daily.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any reference
to the following discipline issued to the named employees, and within 3 days thereafter, notify
them in writing that this has been done and that the discipline will not be used against them in
any way:
Robert Sears February 3, 2012 counseling
Thomas Norton February 10, 2012 counseling
Daniel Domeracki February 10, 2012 counseling
Michael Cavaluzzi February 10, 2012 counseling
Michael Vaast February 13, 2012 counseling
Robert Sears April 12, 2012 verbal warning
Robert Hing April 12, 2012 counseling
Radames Velez April 13, 2012 counseling
Robert Sears May 3, 2012 written warning
Robert Sears May 29, 2012 suspension
WE WILL rescind the public statements policy and general rule violations 6 from the employee
handbook.
WE WILL furnish all current employees with inserts or amendments to the current employee
handbook that (1) advise employees that the public statements policy and general rule
violations 6 have been rescinded, or (2) provide the language of lawful rules; or publish and
distribute revised employee handbooks that (1) do not contain the public statements policy and
general rule violations 6, or (2) provide the language of lawful rules.
BURNDY, LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
A.A. Ribicoff Federal Building and Courthouse, 450 Main Street, Suite 410, Hartford, CT 06103-3022
(860)240-3522, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (860) 240-3006